Advocates:
['CHAVAN SUDHIR K', 'R/SOLE SERVED', '', 'AGRAWAL PAVANKUMAR S']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 298 OF 2016

Bhimrao @ Bhima s/o Govinda Iratkar,

Age: 48 years, Occ: Business,

R/o. Warud Chakrapan, Tq. Sengaon,

Dist. Hingoli.

...Petitioner

versus

Parasram s/o Ramaji Kotkar,

Age: 65 years, Occ: Agri.,

R/o. Warud Chakrapan, Tq. Sengaon,

Dist. Hingoli.

...Respondent

.....

Mr. S.K. Chavan, Advocate for petitioner

Mr. P.S. Agrawal, Advocate for respondent

.....

CORAM : N.W. SAMBRE, J.

DATE : 11th APRIL, 2016

ORAL ORDER :

The petitioner is an accused in a Summary Trial Case

No. 238 of 2014 initiated by the respondent-complainant for an

offence punishable under Section 138 of the Negotiable Instruments

Act. After recording of statement under Section 313 of the Code of

Criminal Procedure, the respondent-complainant moved an

application styling to be under Section 311 of the Code of Criminal

Procedure, seeking leave of the Court to call independent witness so

as to prove an agreement between the accused and

Grampanchayat. The said application Exhibit-47 came to be allowed

by learned Judicial Magistrate, First Class, Sengaon by order dated

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14/12/2015. Hence, the present writ petition.

2.

Mr. Chavan, learned Counsel for the petitioner would

urge that the stage at which powers under Section 311 of the Code of

Criminal Procedure are exercised by the Magistrate, was not

permissible, as according to him, once having opened his defence,

the application under Section 311 of the Code of Criminal Procedure

came to be moved with an intention to fill up lacuna.

3.

He would then rely upon the language of Section 311 of

the Code of Criminal Procedure so as to submit that the

circumstances which prompted learned Court below to exercise

powers granting application under Section 311 of the Code of

Criminal Procedure are not known to the requirement of the said

Section. By relying upon the judgment of the Apex Court in the

matter of Hanuman Ram vs. State of Rajasthan and others

reported in (2008) 15 SCC 652 and in the matter of Kailash s/o

Dhanraj Batra vs. Amol alias Jolly s/o Shrichand Kungwani

reported in 2014 ALL MR (Cri) 5112 from this Court so as to

substantiate the above referred contentions.

4.

Learned Counsel for the respondent would submit that

even if the accused has examined himself under Section 313 of the

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Code of Criminal Procedure, however, the application under Section

311 of the Code of Criminal Procedure was rightly considered and

granted by the Court having reached to the conclusion that by grant

of such application, the complainant is not permitted to fill up lacuna,

if any. He would then submit that the evidence as is known to the

parties of that defence, will hardly be hampered and will be frustrated

by allowing the application under Section 311 of the Code of Criminal

Procedure. According to him, present writ petition lacks merit and be

dismissed.

5.

With the assistance, I have perused the order passed by

learned Magistrate while allowing the application under Section 311

of the Code of Criminal Procedure.

6.

It is required to be noted that the said application having

regard to the language employed in the Section can be considered

and allowed at any stage of the proceedings, provided, if it is

essential to the just decision in the case.

7.

If the above referred language of Section 311 of the

Code of Criminal Procedure is tested in the light of provisions of

Sections 138 and 139 of the Negotiable Instruments Act, it is to be

noted that there is presumption as against the present petitioner in

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the matter of issuance of cheque. Once such presumption is

considered in the backgro