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TMI Blog2019 (6) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... is the original complainant who has filed two complaints against the Petitioner and his company being Complaint Nos.3277/SS/2015 and 11511/SS/2015 under Section 138 of the Negotiable Instruments Act, 1881. In the said complaints the Petitioner i.e. the original Accused was summoned to appear before the Trial Court i.e. the learned Metropolitan Magistrate, 33rd Court at Ballard Pier, Mumbai. It is alleged in the complaint that the accused had placed orders for Phthalic Anhydride with the complainant company, and for that purpose the accused issued four cheques in favour of the complainant. It is alleged that out of the said four cheques, the complainant presented three cheques to their bankers which were returned with remarks "Payment Stopped". The complainant sent notices to the accused. Thereafter the Complainant has filed the complaints under Section 138 of the Negotiable Instruments Act against the accused. 4. The Petitioner Accused was summoned by the Trial Court. The Accused pleaded not guilty and granted bail. Thereafter the complainant filed affidavit in lieu of evidence of its Manager. The said manager stepped into witness box to depose and was cross examined by the advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant filed fresh applications under Section 311 of the Criminal Procedure Court before the Trial Court. By the said fresh applications the Complainant prayed that the Complainant may be allowed to examine Mrs. Sejal Shah, who is the authorized representative of the complainant company, to produce on record the minutes of meeting dated 06/05/205; to examine the officer of Axix Bank, Sir P M Road Branch to produce and prove the bank account statements; and to examine Mr. Pankaj Pandya, the authorized representative of M/s. BMC Chemicals, the consignment agent of complainant company to prove and produce the letters dated 19/06/2013 and 31/12/2013 issued by the said company to the accused. 10. After perusing the applications and the order passed by this Court earlier, the trial Court by the order dated 21/02/2019 allowed the said applications in view of paragraph 6 of the order of this Court and recalled the three witness to produce the documents. By the said order the Trial Court also issued summons to all witnesses. It is the said order dated 21/02/2019 passed by the Trial Court allowing the applications filed by the Complainant under Section 311 of the Criminal Procedure Code wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and quashed. 12. The learned counsel for the Respondent Complainant Mr. Yashpal Thakur submitted that the complainant has found certain relevant documents which would go to the root of the matter. He also submitted that the Complainant has filed fresh applications pursuant to the liberty granted by this Court to move appropriate application to examine witness/es with specific averments and pleadings before the trial Court. The learned counsel for the Complainant further submitted that if the applications are allowed, no prejudice would be caused to the accused as the accused would get an opportunity to cross examine the said witnesses, and if the applications are rejected, grave prejudice would be caused to the complainant which would not be compensated. He further submitted that on the basis of the observations made by this Court in paragraph 6 of the order dated 21/01/2019, the trial Court was right in allowing the applications filed by the complainant. The learned counsel for the Respondent No.1 Complainant sought to rely upon the judgment of the Apex Court in the matter of Mannan Shaikh and others v/s. State of West Bengal and another reported in (2014) 13 SCC 59. He therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as it appears from the submissions that the issue of privity of contract between the complainant and the accused is raised. On this point, the person from M/s. BMG Chemicals is the correct witness and is required to be examined in order to find out truth" This Court has clearly observed that the documents of acknowledgement or delivery now cannot be proved from the complainant who is already cross examined, and on this point the person from M/s. BMG Chemicals is the correct witness and is required to be examined in order to find out the truth. In my view, it is in the context of the aforesaid observations, this Court though dismissed the Writ Petitions, has granted liberty to the Complainant to file appropriate applications. It is required to be noted that the Trial Court passed the impugned order in view of the paragraph 6 of the order of this Court and allowed the complainant to recall three witness and to produce the documents. The order passed by this Court (Coram : Mrs. Mridula Bhatkar, J) dated 21/01/2019, referred herein above, has attained finality. 14. As indicated herein above the cross examination of the witness of the complainant is over and the matter is closed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. Paragraph 10 of the said judgment is relevant and is reproduced herein under : 10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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