AMADH BUDHA MADHADA v. STATE OF GUJARAT & Ors.

Constitution of India, the petitioner has challenged the order dated 5th February, 2008 passed by the learned 7th Additional Senior Civil Judge & Judicial Magistrate, Bhuj- Kutch (the learned Judicial Magistrate), below application Exhibit 104 in Criminal Case No.1910 of 1999, whereby the petitioner's application for examination of certain witnesses has been rejected. The petitioner also challenges the order dated 11th September, 2007 passed by the learned Additional Sessions Judge (Fast Track Court No.5), Bhuj – Kutch (learned Additional Sessions Judge) in Criminal Revision Application No.7 of 2007, whereby the aforesaid order dated 5th February, 2007 has been confirmed.

The facts of the case stated briefly are that the respondent No.2 herein had filed a complaint before the learned Judicial Magistrate First Class, Bhuj, alleging dishonour of a cheque issued by the present petitioner, which was registered as Criminal Case No.1910 of 1999.

During the course of trial, the present petitioner submitted an application below Exhibit 104 for re- examination of witnesses under Section 311 of the Code of Criminal Procedure, 1973 (the Code) on 27th July, 2006. By the impugned order dated 5th February, 2007, the learned Judicial Magistrate rejected the said application. The petitioner carried the matter in revision before the learned Additional Sessions Judge, Bhuj, who by the impugned order dated 11th September, 2007, dismissed the revision application, and confirmed the order passed SCR.A/2390/2007 JUDGMENT by the learned Judicial Magistrate. Being aggrieved by the said orders, the petitioner has filed the present petition challenging the same.

Heard Mr.D.K.Nakrani, learned advocate for the petitioner and Mr.L.B.Dabhi, learned Additional Public Prosecutor for the respondent No.1 – State of Gujarat and Mr.C.H.Vora, learned advocate for respondent No.2. Mr.Vijay K. Pandya, Senior Branch Manager, Bank of Baroda, Mandvi – Kutch was personally present before this Court.

Mr.Nakrani, learned advocate for the petitioner has submitted that the respondent No.3, in his deposition before the Court, had admitted that the cheque in question had been given by the present petitioner to the respondent No.2 in the month of November, 1995. The petitioner, therefore, wanted to verify by way of documentary evidence as to what was the exact date when the present petitioner had opened the bank account with the Bank of Baroda. It is further submitted that the petitioner had made an application to the respondent No.4 on 17.10.2007 regarding verification of the cheque in question and was informed that the cheque was issued on 22.1.1996. According to the petitioner, from the documentary evidence, it is clear that the bank account was opened on 22.1.1996 and the cheque in question had been thereafter issued by the petitioner to the respondent No.2. It is, therefore, the case of the petitioner that the deposition of the respondent No.3 that the cheque in question had been issued in the month of November, 1995, is not correct. Hence, he had filed the SCR.A/2390/2007 JUDGMENT present application below Exhibit 104 seeking re- examination of the witnesses under Section 311 of the Code.

The learned advocate for the petitioners has submitted that it is settled legal position that an application for re- examination of witnesses under Section 311 of the Code should be granted if the evidence of such persons appears to be essential to the just decision of the case. It is submitted that, in the facts and circumstances narrated hereinabove, it was absolutely necessary to re-examine the witnesses named in the application to arrive at a just decision of the case, hence, both the Courts below have erred in rejecting the application made by the petitioner.

On the other hand, Mr.C.H.Vora, learned advocate for the respondent No.2 – original complainant has vehemently opposed the application. The learned advocate has submitted that the petitioner had earlier filed an application for production of documents which had been rejected by the concerned Court. Thereafter, the petitioner had also moved an application under Section 311 of the Code for recalling two out of the three witnesses who were sought to be recalled in the present case. The said application had also been rejected by the learned Judicial Magistrate, and the petitioner had also lost in revision against the said order. Attention is drawn to the order dated 27th February, 2006 passed in Criminal Revision Application No.123 of 2006 which had arisen out of the said orders, wherein this Court has rejected the application and upheld the orders passed by the Courts SCR.A/2390/2007 JUDGMENT below. It is, accordingly, submitted that a second application seeking recalling of the same witnesses is not maintainable. It is contended that, at the relevant time, when the said witnesses had been examined and cross- examined, it was open to the petitioner to cross-examine them with regard to any documents, and that, it was not permissible at this stage to permit the petitioner to recall the witnesses merely to plug the loopholes. It is, accordingly, urged that the petition being devoid of merit, be rejected.

This Court has considered the submissions advanced by the learned advocates for the parties and has perused the record of the case. A perusal of the order dated 5th February, 2007 passed by the learned Judicial Magistrate clearly shows that earlier the petitioner had moved a similar application which had been carried upto the stage of this Court and had been rejected all throughout. The said application had been filed before recording the petitioner's statement under Section 311 of the Code, whereas the present application is filed after recording his statement under Section 311. The learned Judicial Magistrate has observed that despite the aforesaid position, this application does not deserve to be entertained as earlier vide application Exhibit 101, the applicant had sought re-examination of two witnesses, namely, the original complainant Rasiklal Sheth and Vithaldas Mulji Soni. Both these witnesses had been examined by the complainant as his witnesses. Both the aforesaid witnesses had been cross-examined at length on behalf of the petitioner – accused. The learned Judicial SCR.A/2390/2007 JUDGMENT Magistrate has observed that the documents produced by the accused after recording of his statement under Section 311 of the Code are all documents which were in his possession at the time when he cross-examined the aforesaid witnesses. That no plausible explanation was coming forth as to why the petitioner did not refer to those documents at the relevant time. It is also recorded that the third witness sought to be examined by the petitioner is Ramanlal Thakkar, who is the learned advocate appearing on behalf of the complainant. It is also stated that no reasons are stated as to why he is required to be examined. The learned Judicial Magistrate has also recorded that, earlier the applicant had filed an application Exhibit 80 under Section 311 of the Code before the learned Judicial Magistrate, seeking recall of two witnesses as well as the clerk of the Bank, which had been rejected by a reasoned order, against which the petitioner had failed, both before the Sessions Court as well as High Court.

Placing reliance upon the order passed by the High Court in the said proceedings, the learned Judicial Magistrate has come to the conclusion that the applicant had an opportunity of cross-examining the said witnesses in respect of the documents at the relevant time. It is observed that, it is true that it is open for the accused to examine witnesses in his defence after recording of his statement under Section 311, however, the same does not mean that it is permissible for him to fill in the lacuna. The learned Judicial Magistrate, accordingly, rejected the application. SCR.A/2390/2007 JUDGMENT

The learned Additional Sessions Judge, in his order dated 11th September, 2007, has come to the conclusion that the present application appears to have been filed with a view to delay the proceedings and to fill in the lacuna, which is not permissible under law.

In the background of the facts noted above, this Court is of the view that the learned Judicial Magistrate has assigned sufficient and cogent reasons for not allowing the application of the petitioner under Section 311 of the Code. This Court, in its order dated 27th February, 2006, which emanated from an application below Exhibit 80 made by the petitioner for recalling two out of the three witnesses sought to be recalled by way of the present application, has observed as follows :

Having heard Mr. Nakrani learned advocate for the applicant and having perused the record of this Criminal Revision Application, it clearly appears that no case has been made out by the applicant to show why these documents could not be produced on record and shown to the witnesses at the time of their cross examination. At a subsequent stage, he cannot be permitted to plug the loopholes by recalling the witnesses. If he intends to bring these documents on record, there are other remedies open for him under Criminal Procedure Code and he can avail them. In the present application, I do not find any substance. Hence, it is rejected.

SCR.A/2390/2007 JUDGMENT

In view of the aforesaid order passed by this Court, which pertains to two of the witnesses sought o be examined pursuant to the application Exhibit 104, this Court is of the view that a second application on the same ground cannot be permitted. As regards the third witness, namely, insofar the advocate representing the complainant is concerned, no grounds have been stated in the application as to why he is sought to be examined. It is true that the Court can at any stage of the trial summon or recall or re-examine any person examined if his evidence appears to be essential to the just decision of the case. However, the provisions of Section 311 of the Code cannot be resorted to for filling up the lacuna left by the defence or to delay the trial.

In the facts and circumstances of the present case, considering the findings arrived at by the Courts below as well as the order passed by this Court in the earlier proceedings seeking recalling of the very same witnesses, this Court does not find any merit in the present petition.

For the foregoing reasons, the petition fails, and is, accordingly, rejected. Notice is discharged. parmar*

[HARSHA DEVANI, J.]