SHREELAL KAJARIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS revision application is against an order made by the Additional Sessions Judge, Bombay, by which he directed certain witnesses to be examined as Court witnesses under Section 540 of the Criminal Procedure Code. The petitioner is the accused before the learned Additional Sessions Judge. The allegation of the prosecution is that the petitioner entered Into a contract on the 5th of September 1959, with the State Trading Corporation of India Ltd. for the supply of 7000 tons of Manganese Ore to be exported through the said State Trading Corporation of India Ltd. to Messrs. Ironside Ltd. , London, through their agents in India. The first instalment of about 3000 tons of Manganese Ore was brought in the port premises In the year 1959, and after the petitioner received the Intimation to lift the load. It was actually loaded in the month of July 1960, In a ship specially assigned for the purposed The prosecution allegation further is that the petitioner received part payment on the strength of the letter of credit opened for that purpose. Some dispute arose between the State Trading Corporation and the Petitioner on the ground that the goods were encumbered with the Tokyo Bank. It was also alleged that the goods, which the petitioner had shifted, were not of proper specification. The petitioner states in the present petition that the State Trading Corporation wrongfully reduced the rate of payment, and In spite of an arbitration clause in the agreement, a sum of about Rs. 67,000/- was withheld by the Corporation, although it was promised as due on certain previous supplies. With regard to the remaining 4000 tons of Manganese Ore, the prosecution further alleges that on the pretext that this quantity was declared to be ready for being loaded sometime in February 1960, and after tilling all the necessary documents, as no ship was assigned for lifting the Ore within 60 days in accordance with the terms of the contract, payment to the tune of 95% of the total value of the goods was appropriated by the petitioner. In April 1961, first information of this alleged offence was lodged In which It was stated that there was no unencumbered stock of 4000 tons of Manganese Ore as declared by the petitioner, and the petitioner, In withdrawing Rs. 5,70,000/- purporting to be in accordance with the Letter of Credit, had committed the offence of cheating, it was also alleged that a certain report purporting to be the report of a Chemical analyser in respect of the 4000 tons of Manganese Ore was a forged document, and the petitioner had used that document knowing it to be forged.

(2.) THE defence was of denial. On these allegations, the Petitioner was committed to sessions and is at present being tried by the learned Additional Sessions Judge, Bombay.

(3.) IN this petition, the petitioner alleges that in the charge-sheet, which was filed by the prosecution, names of 19 witnesses were mentioned as prosecution witnesses, but the prosecution, in fact, examined only 10 witnesses from this list. It Is also alleged that at a subsequent stage, the learned Judge allowed the preset caution to examine 13 more witnesses whose names were not mentioned in the charge-sheet. I am, however, not concerned in this petition with these allegations, since no specific grievance has been made In this petition or during arguments at the bar with regard to the permission granted by the learned Additional Sessions Judge to examine the additional 13 witnesses. The prosecution evidence was completed; the defence, also led evidence; and it appears that the examination of the accused under Section 342 of the Code of Criminal Procedure, had also been exhaustively done, it was practically after the entire case was over, that an application was made by the prosecution that it should be allowed to examine1 certain more witnesses in support of the prosecution case. It was stated in that application that on the Information received by the prosecution, some documents, which have come to light, required investigation, and on that ground, 4 additional witnesses should be allowed to be examined to rebut the evidence led by the defence. The attempt was to show that certain weighment slips, to which reference was made by the defence, were false, and for that purpose, it was necessary to examine some person from the office of the Regional Transport Officer, and through him to get certain documents, produced before the Court. The learned Additional Sessions Judge has rejected the Application made by the prosecution and has held that the prosecution was not entitled to lead any evidence in rebuttal of the defence case after the prosecution case was closed, and in this case, even after the defence evidence was led. The learned Additional Sessions Judge, however, thought that even though permission could not be granted to the prosecution to lead evidence in the nature of rebuttal, examination of certain witnesses was necessary in the interest of justice. He, therefore, passed the order, which is impugned in the present revisional application, directing certain witnesses to be examined as court-witnesses under Section 540 of the Criminal P. C. It is to challenge this order of the learned Additional Sessions Judge, Bombay, that the present revision application is filed by the petitioner, original accused.