SHABBIR TAJUDDIN MULANIversusHANUMANT SAHEBRAO MAGAR

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIRCUIT BENCH AT KOLHAPUR
               CRIMINAL APPELLATE JURISDICTION

                    WRIT PETITION NO. 4713 OF 2025

1)    Shabbir Tajuddin Mulani               ]
      Age: 52 years, Occu: Teacher          ]
      R/at: Sangram Nagar, Bypass Road,     ]
      Tal. Malshiras, Dist. Solapur.        ] … Petitioner
                                              (Original Accused)
              Versus
1)    Hanumant Sahebrao Magar               ]
      Age: 47 years, Occu: Agricultirust    ]
      R/at: Nimgaon, Tal. Malshiras,        ] … Respondent.
      Dist. Solapur.                        ] (Original Complainant)


                                 …
Mr. Shardul Diwan, (Through VC) a/w Adv. Poonam Dhotre, Advocate for
Petitioner.

Adv. Drishti Madhani (Through VC) a/w Mr. Sandeep Deshpande i/by
Bhavake & Associate, Advocates for Respondent.
                                   …

                                  CORAM : ABHAY J. MANTRI, J.
                                  DATE  : OCTOBER 01, 2026
ORAL JUDGMENT :

1.            Rule. Rule made returnable forthwith, and the matter is taken up

for final disposal at the admission stage with the consent of the learned

Advocates for the respective parties.

2.            The Petitioner, being aggrieved by the Judgment and order dated

30th September, 2025 passed by the learned Additional Sessions Judge,

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Malshiras, in Criminal Revision Application No. 09 of 2025, whereby the

order passed by the learned Judicial Magistrate First Class, Malshiras (for

short, the “learned Magistrate”) below Exhibit-41 in S.T.C. No. 1463 of

2021, whereby the Application for recalling the Original Complainant for

further cross examination under Section 311 of the Code of Criminal

Procedure, 1973 (for short, “Cr.P.C.”) was rejected on 28th March, 2025, has

preferred this Petition.

3.           The Respondent is the Original Complainant before the learned

Magistrate, who has filed the Complaint against the Petitioner under Section

138 of the Negotiable Instruments Act, 1881 (for short, the “N. I. Act”) for

dishonour of the cheque. During the pendency of the proceedings, on 1 st July,

2023, the Complainant filed an affidavit of evidence before the learned Trial

Court; then, on 23rd August, 2024, he entered into the witness box and

produced and proved the documents. On the same day, his cross-examination

was conducted partly and, at the request of the Advocate for the

Petitioner/Accused, it was deferred as she desired to produce relevant

documents; as such, time for further cross-examination was granted. His

further cross-examination commenced and concluded on 1st October, 2024.

4.           On 4th March, 2025, the Petitioner filed an application to recall

the witness, i.e. the Respondent, as while cross-examining the witness, the

Advocate for the accused had inadvertently failed to properly put the

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question regarding the part payment made by the friend of the accused,

Dnyandev Bagal, into the bank account of the Respondent and, therefore,

moved the application. The Respondent opposed the Application on the

ground that there is no provision to recall the witness to fill the lacuna and,

therefore, urged rejection of the Application. After hearing the learned

Advocates for both parties, the learned Magistrate, vide order dated 28 th

March, 2025, rejected the Application, holding that “it was not permissible to

fill the lacuna arising from the failure to give proper instructions to the

Advocate for the Accused/Petitioner”.

5.           Feeling aggrieved by the said order, the Petitioner has preferred

a Revision before the learned Sessions Court. After hearing the parties, the

learned Additional Sessions Judge dismissed the Revision by Judgment dated

30th September, 2025, holding that the order passed by the learned Magistrate

was just, legal and proper, and that no interference was warranted in the

revisional jurisdiction. Being dissatisfied with the said Judgment and order,

the Petitioner has preferred this Petition.

6.            Learned Advocate for the Petitioner, during the argument, has

taken me through the Application filed before the learned Magistrate and the

order passed by the learned Magistrate as well as the learned Sessions Court.

He also drew my attention to the suggestion put to the Respondent by the

learned Advocate for the Petitioner. (at page no. 35.)

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7.              He also drew my attention to the account statement in that

regard. However, he submitted that, at the time of cross-examination, the

learned Advocate for the Petitioner had not received proper instructions

about the payment made by the Petitioner's friend in the Respondent's bank

account. Therefore, the question regarding said transaction remained to be

put to the Respondent during his cross-examination and, therefore, for that

purpose, it is necessary to recall the Respondent for further cross-

examination.

8.              Consequently, he submitted that the learned Magistrate as well

as the Sessions Court have not recorded their findings as to how the recalling

of the witness is not necessary for the just decision of the said case and,

therefore, urged that the Petition be allowed.

9.              To buttress his submission, he relied on the Judgment in

Rajaram Prasad Yadav Vs. State of Bihar and another 1 (for short “Rajaram”)

and drew my attention to the principles laid down by the Hon’ble Supreme

Court in the said Judgment, as set out in paragraph no. 23 from clause (a) to

(n) and shown clauses (c) and (j) thereof and relied on the principle laid

down in the said Judgment.

10.             It is pertinent to note that during the argument, on a query put to

the learned Advocate for the Petitioner, he fairly submitted that the Petitioner

1    2013 (14) SCC 461

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had not replied to the notice issued by the Respondent before filing of the

complaint nor raised his defence by filing reply to the complaint.

11.          It appears that on 1st July 2023, the Respondent filed an affidavit

of evidence in the Court and entered into the witness box on 23 rd August,

2024, and on that day the Advocate for the Petitioner cross-examined the

Respondent partly and thereafter sought time for further cross-examination as

the Petitioner wanted to produce some important documents in support of his

defence. Accordingly, further cross-examination was deferred. On 1 st October

2024, the further cross-examination was commenced and concluded.

12.          It is pertinent to note that on 23rd August, 2024, the matter was

adjourned at the request of the Petitioner for giving an opportunity to him to

produce the documents before the Court. Despite this opportunity, the

Petitioner failed to produce the documents before the learned Magistrate

during the further cross-examination on 1st October, 2024.

13.          It would be appropriate to reproduce the suggestion put to the

witness during his cross-examination dated 1st October, 2024, which read

thus: “gs Eg.k.ks [kjs ukgh dh fn-29-10-2020 jksth vkjksihus ekÖ;k jRukdj cWadsP;k

[kkR;ke/;s :- 3]00]040@& ,o<h jDde vkjVhth,l}kjs ikBfoyh gksrh”.

14.          It appears that the learned Advocate for the Petitioner put the

specific suggestion to the Respondent that “on 29th October 2020, the

Petitioner/accused transferred an amount of Rs. 3,00,040/- by RTGS in his
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bank account”. The Respondent denied the said suggestion. On that day, he

did not produce any other document before the learned Magistrate in support

of his defence, nor did he put any suggestion to him that his friend had

deposited the said amount in the Respondent's bank account.

15.         After 5 months, on 4th March, 2025, the Petitioner moved an

Application before the learned Magistrate to recall the Respondent as he had

failed to put the suggestion to him that on 29 th October, 2020, his friend

Dyandev Bagal had deposited an amount of Rs.3,00,040/- in the bank

account of the Respondent. He did not bring this fact on record during cross-

examination because, at the time of cross-examination, his friend's bank

account statement was not available with him and, therefore, his Advocate

inadvertently failed to put the said question to the witness. Therefore, he

moved an application. The learned Magistrate, after considering the rival

submissions, observed in paragraph no. 6 of the order that “full opportunity

of cross-examination of the complainant was given to the Petitioner/Accused.

Also, sufficient opportunity was given to the Petitioner to file the necessary

documents on record”.

16.         So also, without the bank account statement, the learned

Advocate for the Petitioner could have put the suggestion to the witness in

that regard. However, the entire cross-examination of the Respondent

indicates that no question was put to him in that regard and, therefore, the

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learned Magistrate held that “failure of the accused to give proper

instructions to his Advocate and failure to ask the relevant question is not a

reason sufficient to recall the witness for the just decision of the case”. It

seems that the learned Magistrate recorded that the recall was not necessary

for the just decision of the case and, therefore, I do not find substance in the

contention of the learned Advocate for the Petitioner that the learned

Magistrate has not recorded a specific finding in that regard.

17.            In paragraph No. 8, the learned Magistrate has considered the

Judgment in Rajaram (supra). It was further held that “it has already been

seen that the reasons stated in the application by the Petitioner are not

sufficient even to recall the witness. It was also held that “the Application

was filed only in order to fill up the lacuna remained due to failure to give

proper instructions to the Advocate of the Petitioner.” Therefore, the

Application was rejected. The learned Sessions Court confirmed the said

order.

18.            I would like to reproduce the principle laid down by the Hon’ble

Supreme Court in Rajaram (supra), in paragraph no. 23, clauses (a) to (n) of

the said Judgment, which reads thus:

          “ a) Whether the Court is right in thinking that the new evidence is
          needed by it? Whether the evidence sought to be led in under
          Section 311 is noted by the Court for a just decision of a case?
          b) The exercise of the widest discretionary power under Section
          311 Cr.P.C. should ensure that the judgment should not be rendered
          on inchoate, inconclusive speculative presentation of facts, as
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          thereby the ends of justice would be defeated.
          c) If evidence of any witness appears to the Court to be essential to
          the just decision of the case, it is the power of the Court to summon
          and examine or recall and re-examine any such person.
          d) The exercise of power under Section 311 Cr.P.C. should be
          resorted to only with the object of finding out the truth or obtaining
          proper proof for such facts, which will lead to a just and correct
          decision of the case.
          (e) The exercise of the said power cannot be dubbed as filling in a
          lacuna in a prosecution case, unless the facts and circumstances of the
          case make it apparent that the exercise of power by the Court would
          result in causing serious prejudice to the accused, resulting in
          miscarriage of justice.
          (f)    The wide discretionary power should be exercised judiciously
          and not arbitrarily.
          (g)    The Court must satisfy itself that it was in every respect
          essential to examine such a witness or to recall him for further
          examination in order to arrive at a just decision of the case.
          (h)    The object of Section 311 Cr. P.C. simultaneously imposes a
          duty on the Court to determine the truth and to render a just decision.
          i) The Court arrives at the conclusion that additional evidence is
          necessary, not because it would be impossible to pronounce the
          judgment without it, but because there would be a failure of justice
          without such evidence being considered.
          j) Exigency of the situation, fair play and good sense should be the
          safe guard, while exercising the discretion. The Court should bear
          in mind that no party in a trial can be foreclosed from correcting
          errors and that if proper evidence was not adduced or a relevant
          material was not brought on record due to any inadvertence, the
          Court should be magnanimous in permitting such mistakes to be
          rectified.
          k) The Court should be conscious of the position that after all the
          trial is basically for the prisoners and the Court should afford an
          opportunity to them in the fairest manner possible. In that parity of
          reasoning, it would be safe to err in favour of the accused getting
          an opportunity rather than protecting the prosecution against
          possible prejudice at the cost of the accused. The Court should
          bear in mind that improper or capricious exercise of such a
          discretionary power, may lead to undesirable results.
          l) The additional evidence must not be received as a disguise or to
          change the nature of the case against any of the party.
          m) The power must be exercised keeping in mind that the evidence
          that is likely to be tendered, would be germane to the issue involved
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          and also ensure that an opportunity of rebuttal is given to the other
          party.
          n) The power under Section 311 Cr.P.C. must therefore, be invoked
          by the Court only in order to meet the ends of justice for strong and
          valid reasons and the same must be exercised with care, caution
          and circumspection. The Court should bear in mind that fair trial
          entails the interest of the accused, the victim and the society and,
          therefore, the grant of fair and proper opportunities to the persons
          concerned, must be ensured being a constitutional goal, as well as
          a human right.”

19.            As per the principles laid down in clauses (e) to (h), it reveals

that the object of Section 311 of Cr.P.C. imposes a duty on the Court to

determine the truth and to render a just decision.

20.            It is undisputed that the Petitioner had not replied to the notice at

the first instance and thereby failed to put up his defence. Secondly, on 23 rd

August, 2024, at the request of the learned Advocate for the Petitioner, time

was granted to produce the documents on record and further cross-

examination was conducted on 1st October, 2024, i.e. after nearly 40 days.

These facts indicate that the Petitioner was granted sufficient opportunity to

produce the documents on record when the account statement on which the

Petitioner relies is dated 29th October, 2020, and was within the Petitioner's

knowledge. Despite this, he failed to bring the said document on record. If

the Petitioner had been aware of the said part payment by his friend in the

Respondent's bank account, he would certainly have instructed his Advocate

and produced the said bank account statement before him. The failure to give

instructions and produce the said bank statement of 2020 leads to an adverse
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inference that the Petitioner wanted to put up a different story and thereby

protract the matter.

21.            Even assuming that the learned Advocate for the Petitioner

contends that he wanted to put the suggestion to the witness/Respondent that

his friend had deposited a part of the cheque amount in the bank account of

the Respondent, that suggestion also would not suffice for the purpose, as the

Petitioner did not reply to the notice nor was the entire cheque amount paid

by the Petitioner or his friend within the prescribed time as contemplated in

the notice and, therefore, I do not find substance in his contention in that

regard that the said fact is necessary to determine the dispute between the

parties for the just decision of the case.

22.            In view of the above discussion, the clause (c) and (j) of para 23

of the decision in Rajaram are not helpful to the Petitioner in support of his

contentions.

23.            In the light of the above discussion, in my view, the Petitioner

has failed to make out a case to show that the recall of the witness is

necessary for the just decision of the case.

24.            On the contrary, it appears that the Petitioner, with an intent to

protract the criminal trial, had moved this Application belatedly and thereby

abused the process of law and, for that purpose, in my view, it is appropriate

to saddle the costs on the Petitioner for the said conduct.
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                25.          Consequently, the Petition, being bereft of merits, stands

                dismissed with costs of Rs.20,000/-.

                26.          Out of Rs.20,000/-, the Petitioner is directed to pay Rs.10,000/-

                to the Respondent and Rs.10,000/- be credited to the Government within a

                period of one month from today, failing which the Petitioner’s further right to

                proceed in the matter will be forfeited.

                27.          Inform the learned Trial Court accordingly.

                28.          It further appears that, since 2021, the proceedings have been

                pending before the learned Trial Court. Therefore, the learned Trial Court is

                directed to dispose of the matter as expeditiously as possible, and within six

                months from receipt of a copy of this order. No further time will be granted.

                29.          The Petition stands disposed of.




                                                                   (ABHAY J. MANTRI, J.)

           Digitally
           signed by
           TALLE
TALLE      SHUBHAM
SHUBHAM    ASHOKRAO
ASHOKRAO   Date:
           2026.10.07
           10:19:25
           +0530




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