HARSHAD V SHAH Vs. SUDARSHANBHAI R SHAH

JUDGEMENT

(1.) This petition under Article 226 and 227 of the Constitution of India is directed against the order of the learned Sessions Judge, Bhavnagar dated 14.2.2001 in the Criminal Revision Application No.11 of 2001 under which he has confirmed the order passed by the Second Joint Judicial Magistrate, First Class, Bhavnagar below Ex.56 in Criminal Case No.1760 of 1998. Exh.56 is the application filed by the petitioner who is accused in Criminal Case No.1760 of 1998 filed by respondent No.1 under Section 138 of the Negotiable Instrument Act. This application is purported to be filed under Section 311 of the Criminal Procedure Code, 1973.

(2.) This petition can only be under Article 227 of the Constitution of India. The facts of the case are that on 1.5.1998 the respondent No.1 had filed a complaint against the petitioner for the offences punishable under Section 138 of the Negotiable Instruments Act and the same is registered as Criminal Case No.1760 of 1998 in the court of Chief Judicial Magistrate, Bhavnagar. Cognizance in the criminal complaint has been taken. It is not in dispute that the complainant has been cross-examined at length by the accused. After completion of the evidence of the complainant, statements of the petitioner were recorded under Section 313 of the Criminal Procedure Code, 1973. It is made clear that the petitioner does not want to produce evidence in defence. Statements of the petitioner under Section 313 of Criminal Procedure Code were recorded on 22.2.2000. Naturally when the petitioner was not desired to produced any evidence in defence the learned trial court has rightly posted the matter for final hearing. Matter is reached an another step that complainant has complained his arguments. This application under Section 311 of the Criminal Procedure Code came to be filed by the petitioner on 11.10.2000. In this application prayer has been made for grant of permission to recall the complainant for further cross examination and examine one Shri Jaysukhbhai T. Sanghvi, Financial Broker in defence, in the interest of natural justice and oblige. This application was opposed by the learned counsel for the complainant. After hearing the arguments of the learned counsel for the parties this application was came to be rejected by Second Joint Judicial Magistrate, First Class, Bhavnagar under its order 15.1.2001 and as said earlier which order has been confirmed in the revision by Sessions Judge, Bhavnagar under its order 14.2.2001 also hence this petition before this court.

(3.) The learned counsel for the petitioner relying upon the decision of the apex court in the case of Selvi J. Jayalalita Vs. State by Deputy Supdt. of Police, Chennai reported in 2000(9) SCC 754 contended that the application at Exh.56 may be allowed and permission be granted to the petitioner to further cross examine the complainant as well as to examine his one witness. It has next been contended that Section 311 of the Cr.P.C. confers wide powers to the judicial court to recall the witness for cross examination and also to permit the parties to the case to examine their witnesses after completion of the evidence. It is submitted that both the courts not considered this aspect. Mr.Bhatt submits that the courts exist to do the justice to the parties and not to condemn them without giving full opportunity of producing the defence.