: AMIT BORKAR, J. DATED : APRIL 18, 2023 P .C.:

1. The petition is directed against the judgment and order dated 21 st January 2023, passed by Metropolitan Magistrate 7 th Court, Dadar, Mumbai below Exhibit 149 along application under 311 of Code of Criminal Procedure, 1973. The petition arises out of proceeding under Section 138 of Negotiable Instruments Act,

1881. The accused during the course of trial denied the signature over the cheque. He also denied delivery of subject goods. The defense evidence was closed on 20 th August 2022.

2. Since the accused denied the existence of legally recoverable debt and the signature on the cheque, the respondent No.1/complainant while an application under Section 311 of Code of Criminal Procedure to examine 5 witnesses to prove the cheque and delivery of goods.

3. The petitioner challenged and objected the reasons of complainant or contending that such application is not maintainable after the accused has examined its witnesses and closed evidence. Statement under Section 313 of Code of Criminal Procedure, 1973 has also been recorded. Allowing such application would tantamount to fill up of lacuna. The application deserves to be rejected.

4. The Magistrate relying on the judgment in the case of Rajendra Prasad Vs. Narcotic Cell reported in AIR 1999 SC 2292 held that the Apex Court permitted a party to the trial to cure errors, if proper evidence is adduced. Relevant material was not brought on record inadvertently. The Court should be magnanimous in permitting such mistake to be rectified. It was further held that after all function of the criminal justice is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

5. The Apex Court in paragraphs 8 and 16 of Natasha Singh Vs. Central Bureau of Investigation (State), reported in 2013 (5) SCC 741 has held as under :-

“8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case . Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such rights would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. [ Talab Haji Hussain v. Madhukar Purshott