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TMI Blog2023 (6) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 2 filed a complaint against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short "N.I. Act"). The learned J.M.F.C. after trial held the petitioner guilty of an offence punishable under Section 138 of the N.I. Act by the judgment and order dated 04.01.2019. Being aggrieved by the said judgment and order, the petitioner preferred an appeal in the Court of learned Additional Sessions Judge, Ambajogai bearing Criminal Appeal No. 3/2019. The petitioner in the said appeal filed an application seeking permission to produce on record documents and to cross-examine the complainant. 4. The petitioner submitted in the application that though the petitioner has produced on record documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Additional Sessions Judge thus rejected the application by order dated 09.12.2022. 6. Learned advocate for the petitioner vehemently argued that it is already recorded by the learned Court that the fact about the documents on record is admitted. The said documents are not exhibited that is also accepted by the learned Additional Sessions Judge. He invited attention to the order passed by the learned Trial Court on application below Exh. 40. The said application was moved by the complainant calling Branch Manager for cross-examination. Though the said application was allowed he did not examine the Branch Manager. In view of the same the Court ought to have exhibited the documents so that those can be read into evidence. He submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be entitled to recall witness under Section 311 of the Cr.P.C. It is held that, the lacuna in prosecution is not to be equated with the fallout or an oversight committed by a public prosecutor during trial. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. It is thus held that the power to cross-examine any witness is plenary power and that can be exercised at any stage of the trial if Court finds the same to be necessary for a just decision of the case. 11. In the judgment of Eastern Equipment and Sales Limited Vs. Ing. Yash Kumar Khanna reported in (2008) 12 SCC 739, it was a case of civil appeal wherein, the Hon'ble Apex Court has considered the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused had filed an application under Section 391 to allow him to examine himself. The said application was rejected. This Court has held that at the stage of appeal the accused was trying to set up a new case. In view of that, it was held that it was clearly an attempt to improve on the defence, if not to set up a new defence altogether. The discretion is required to be exercised with circumspection and caution and such application be disallowed. It is held that, the power under Section 391 of the Cr.P.C. sought to be misused or abused and had rejected the application under Section 391. 15. By considering the above judgments this Court finds that, the application under Section 391 of the Cr.P.C. needs to be considered in the facts of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the learned Trial Court is is seen that, in the learned Trial Court a defence was that the accused i.e. petitioner had never issued disputed cheque. It is again suggested that, the complainant had free access to the house of the accused and to the business place and thus, the complainant has stolen 3-4 blank cheques signed by the accused. Thus, the defence was clearly of misuse of cheque or stealing of the cheques. Certainly, now from the application it appears that the petitioner wants to cross-examine the witness to show that he has already made the payment. The application therefore is not mere application for correcting the inadvertent mistake. So far as exhibiting of the document is concerned, the Court has already observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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