Re-examination of witnesses under Section 311 is not allowed merely to fill gaps or delay trial; it must be essential for the just decision of the case.

JUDGEMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2390 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = AMADH BUDHA MADHADA - Applicant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================= = Appearance : MR DK NAKRANI for petitioner MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR CH VORA for Respondent(s) : 2, NOTICE NOT RECD BACK for Respondent(s) : 3 - 4.

========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 04/02/2008 ORAL JUDGMENT 2/8 JUDGMENT

1. By this application under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 5th February, 2008 passed by the learned 7th Additional Senior Civil Judge & Judicial Magistrate, Bhuj- Kutch (the learned Judicial Magistrate), below application Exhibit 104 in Criminal Case No.1910 of 1999, whereby the petitioner's application for examination of certain witnesses has been rejected. The petitioner also challenges the order dated 11th September, 2007 passed by the learned Additional Sessions Judge (Fast Track Court No.5), Bhuj – Kutch (learned Additional Sessions Judge) in Criminal Revision Application No.7 of 2007, whereby the aforesaid order dated 5th February, 2007 has been confirmed.

2. The facts of the case stated briefly are that the respondent No.2 herein had filed a complaint before the learned Judicial Magistrate First Class, Bhuj, alleging dishonour of a cheque issued by the present petitioner, which was registered as Criminal Case No.1910 of 1999.

3. During the course of trial, the present petitioner submitted an application below Exhibit 104 for re- examination of witnesses under Section 311 of the Code of Criminal Procedure, 1973 (the Code) on 27th July, 2006.

By the impugned order dated 5th February, 2007, the learned Judicial Magistrate rejected the said application.

The petitioner carried the matter in revision before the learned Additional Sessions Judge, Bhuj, who by the impugned order dated 11th September, 2007, dismissed the revision application, and confirmed the order passed 3/8 JUDGMENT by the learned Judicial Magistrate. Being aggrieved by the said orders, the petitioner has filed the present petition challenging the same.

4. Heard Mr.D.K.Nakrani, learned advocate for the petitioner and Mr.L.B.Dabhi, learned Additional Public Prosecutor for the respondent No.1 – State of Gujarat and Mr.C.H.Vora, learned advocate for respondent No.2. Mr.Vijay K. Pandya, Senior Branch Manager, Bank of Baroda, Mandvi – Kutch was personally present before this Court.

5. Mr.Nakrani, learned advocate for the petitioner has submitted that the respondent No.3, in his deposition before the Court, had admitted that the cheque in question had been given by the present petitioner to the respondent No.2 in the month of November, 1995. The petitioner, therefore, wanted to verify by way of documentary evidence as to what was the exact date when the present petitioner had opened the