Mr Bhupesh S. Shah v. Dinesh B. Bhansali & Anr.
Case at a glance
Outcome
Dismissed
Petitions are dismissed
Provisions considered
Key paragraphs
- Para 33. The record illustrates that the complainant faced cross-examination on 8th April 2011 and thereafter, the application under section 311 of Cr.P.C. Was moved. The learned Metropolitan Magistrate found that two documents which are purported to be brought on record by recalling the witness did…
Judgment
Heard the learned counsel for petitioner (complainant).
Proceedings under section 138 of Negotiable Instruments Act are initiated by the petitioner against Dinesh Babulal Bhansali. During the course of evidence, the petitioner felt that certain documents which are important, to be placed on record, could not be done and has moved application vrd 2 WP2419/11 before the learned Metropolitan Magistrate to recall the witness in terms of section 311 of Cr.P.C. The learned Metropolitan Magistrate did not agree. Challenge to the same before the learned Additional Sessions Judge also turned against the petitioner (complainant). Hence the present petitions.
Operative part
The record illustrates that the complainant faced cross-examination on 8th April 2011 and thereafter, the application under section 311 of Cr.P.C. Was moved. The learned Metropolitan Magistrate found that two documents which are purported to be brought on record by recalling the witness did not find place in the complaint nor in the statutory notice. If the documents were in the knowledge and interest of the complainant, still he did not refer the same at appropriate stage and consequently the learned Metropolitan Magistrate rejected the application. This exercise of the learned Metropolitan Magistrate does not call for interference as the petitioner in the capacity as complainant was required to take appropriate vrd 3 WP2419/11 precaution which he failed to do so. General reference in the complaint of a commercial transaction will not in itself bring any document the complainant desires to produce at his whims, taking shelter of section 311 of Cr.P.C. The provision of section 311 Cr.P.C. Contemplates two situations viz. (1) if the Court finds that there is emergency and emergent situation to call for the record and witness and (2) if the Court finds otherwise that it is emergent than it is mandatory, then the Court may call witness. The discretion vested in the court under section 311 is to be exercised judicially and not arbitrarily (Raghunath Prasad v/s State of Rajasthan, reported in (1997) 3 Crimes 86 (Raj.)). It is crystal clear that the court has been empowered to summon any person as a witness at any stage of inquiry, trial or other proceeding. The power is not confined to any particular class of person It is settled in law if the conditions under this section are satisfied the court can call a witness not only on the motion of either the prosecution or the defence but also it vrd 4 WP2419/11 can do so on its even motion (Heeralal v/s State of Madhya Pradesh, reported in (1997) 2 Crimes 634 (MP)). There is no such situation in the present proceedings. The order impugned does not call for interference. Petitions are dismissed. (K.U. CHANDIWAL J.)
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Petitions are dismissed
Which statutory provisions did this judgment involve?
Negotiable Instruments Act, 1881 — s. 138; Code of Criminal Procedure, 1973 — s. 311.
Which court decided this case, and when?
Bombay High Court, on 20 Jul 2012. The bench was K U CHANDIWAL.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.