The court emphasized that ensuring witness attendance is crucial for a fair trial, supporting the application of Section 311 despite procedural errors.

JUDGEMENT

1. The petitioner has challenged the order dated 15/02/2020 passed by the learned 17th Additional Sessions Judge, Surat in Criminal Revision Application No.269 of 2018 whereby learned Revision Court rejecting the prayer had confirmed the order dated 07/08/2018 passed by the learned 3rd Additional Chief Judicial Magistrate, Surat below Application Exh.102 in Criminal Case No.8901 of 2013.

2. The learned Magistrate was pleased to reject the application Exh.102 filed by the petitioner praying to the court to exercise powers under Section 311 of the Criminal Procedure Code . The prayer was made to call witness already declared at Exh.44 viz. Induprakash Dube, working in the Financial Cooperative bank Limited to prove documents at Mark 17/15 to 17/17 which were given tentative exhibits 36 to

38.

3. The petitioner is original complainant in Criminal Case No.8901 of 2013 filed in the court of learned Chief Judicial Magistrate, Surat. The petitioner had filed the said complaint against respondent under Section 138 of Negotiable Instruments Act .

4. It is stated by the petitioner that in the year 23/02/2015, the day on which the complaint was filed, the petitioner has declared the list of three witnesses to be examined by him to prove his case. Witness no.1 and 2 being Mr. Milan Shah and Mr. Gaurav Sodha were examined at Exh.46 and Exh.48.

5. Thereafter witness no.3 Induprakash Dube, working in Financial Cooperative Bank Limited, was issued summons.

However, by mistake, the said summons was served to UCO Bank, Salabatpura Branch on 02/01/2017.

6. On 03/01/2017, the said witness could not remain present. Hence, the petitioner gave application Exh.84 noticing the fact that the notice was served wrongly to UCO Bank, for issuing fresh summons to the actual address of the witness no.3. The petitioner states that the learned Magistrate accordingly issued fresh notice to witness no.3 at the address of Financial Cooperative Bank Ltd and the matter came to be posted for hearing on 29/01/2017. However, witness no.3 did not appear on the said day and therefore, the petitioner gave application Exh.85 for issuance of bailable warrant. The learned Magistrate issued bailable warrant against witness no.3. However, witness no.3 yet did not remain present. Again on 29/06/2017, the petitioner made an application Exh.89 for issuance of bailable warrant against witness no.3 and the learned Magistrate issued order for issuance of bailable warrant against witness no.3. Inspite of the said fact, witness no.3 did not remain present before the Court.

7. On, 03/10/2017, through oversight, the petitioner’s advocate gave closing purshis vide Exh.91 and subsequently, upon coming to know that the witness no.3 is yet to be examined, the petitioner filed application Exh.102 on 23/01/2018.

8. Present respondent no.2 objected the said application by filing reply at Exh.104. As the same application Exh.102 was rejected, the petitioner preferred a revision before the learned Additional Sessions Judge, Surat where the revision application was rejected and aggrieved by the same, present petition has been filed.

9. Mr. Manan Shah, learned advocate for the petitioner contends that at the very first stage of filing of the complaint itself, the witness list was produced. The person against whom the prayer was made was cited as witness no.3. The petitioner wanted to examine witness no.3 to prove certain bank statements and bank documents which were produced at