M. BASHIR THRO BASHIALI AKBARALI ASARIYA vs GRIMTECH PROJECTS (I) PVT LTD.

R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
(GJHC240219772026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4108 of 2026
With
R/SPECIAL CRIMINAL APPLICATION NO. 4145 of 2026
With
R/SPECIAL CRIMINAL APPLICATION NO. 4450 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

==========================================================
Approved for Reporting Yes No
YES
==========================================================
M. BASHIR THRO BASHIALI AKBARALI ASARIYA
Versus
GRIMTECH PROJECTS (I) PVT LTD. & ORS.
==========================================================
Appearance:
MR SP KOTIA(5687) for the Applicant(s) No. 1
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 1,2
MR MEET THAKKAR, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 3
==========================================================
CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER

Date : 23/10/2026

COMMON JUDGMENT
1. Since the issue raised in the these petitions are
similar, they are being decided by a common
judgment. The facts of 4108/2026 are taken for the
purpose of adjudication.
2. This petition is filed with the following reliefs:
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R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
(GJHC240219772026)
“9...
A) YOUR LORDSHIP may be pleased to admit this
petition.
B) YOUR LORDSHIP may be pleased to quash and set
aside the Order passed below Ex.48 by the learned 3rd
Additional Chief Judicial Magistrate, Bhavnagar in
Criminal Case No.7512/2019 on 20.12.2025.
C) Any other and further reliefs, which this Honorable
Court deems fit, may kindly be granted in the interest
of justice.”
3. Heard the learned advocate Mr. S.P.Kotia for the
petitioners and learned advocate Mr. Tushar Sheth for
the respondent Nos.1 and 2 and Mr. Meet Thakkar,
learned APP for the respondent-State.
4. It is submitted by learned advocate Mr. Kotia that the
petitioner is the complainant who has filed a
complaint against respondent No. 1 in respect of the
dishonour of seven cheques. It is submitted that the
complainant’s evidence was completed and that the
petitioner’s son was examined below Exhibit 66,
during which he referred to documents relating to
Commercial Suit No. 13 of 2022, the reply to the
notice issued by the accused, and the ledger account
of the petitioner’s firm. It is submitted that, after
referring to the said documents, the petitioner filed
an application below Exhibit 48 seeking permission to
produce the documents, which are essential for the
just decision of the case. However, the said
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application came to be rejected by the learned Court
vide order dated 20.12.2025. It is further submitted
that, though the petitioner challenged the said order
by filing the present petitions and also filed an
application seeking adjournment, the request for
adjournment came to be rejected, and the stage of
cross-examination of the petitioner’s son was closed.
Thereafter, upon the petitioner filing an application
for reopening the stage of cross-examination, the
learned Trial Court proceeded to conclude the cross-
examination without awaiting the outcome of the
present petitions. It is submitted that the application
below Exhibit 48 came to be rejected solely on the
ground that the documents were produced after
completion of the cross-examination of the
complainant and that no satisfactory explanation was
provided for their belated production. It is further
submitted that the evidence of the prosecution is still
in progress and that the said documents were
referred to during the examination-in-chief of the
petitioner’s son. In that background, it is submitted
that, having permitted the examination-in-chief of
the petitioner’s son to be recorded, the learned Trial
Court ought to have allowed the application and
permitted the petitioner to produce the documents,
which are essential for the just decision of the case.
Accordingly, it is prayed that the present petitions be
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R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
(GJHC240219772026)
allowed and the order passed below Exhibit 48 be
quashed and set aside.
5. Per contra, learned advocate Mr. Tushar Sheth,
appearing for the respondents-accused, submits that
the complaint filed by the proprietor of the petitioner
firm does not refer to the documents in question. It is
submitted that the idea of placing the said
documents on record through the evidence of the
petitioner’s son is an attempt made by learned
advocate for the petitioner. It is further submitted
that the examination of the complainant was
completed more than two years ago, and the
petitioner did not produce the said documents during
that period. Therefore, the learned Trial Court was
justified in rejecting the application on the grounds of
delay and the fact that the documents were sought
to be produced after the conclusion of the cross-
examination of the complainant. In view of the
above, it is submitted that no interference is
warranted by this Court and that the present
petitions deserve to be dismissed.
6. Learned advocate Mr. Sheth, in support of his
submissions regarding the power to be exercised
under Section 311, has relied upon the decisions
rendered by the Apex Court in Indian Bank
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R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
(GJHC240219772026)
Association and Others v. Union of India and
Others, reported in (2014) 5 SCC 590 , and
Rajaram Prasad Yadav v. State of Bihar and
Another, reported in (2013) 14 SCC 461.
7. The present petitions are opposed by the learned APP
appearing for the respondent-State.
8. Having considered the submissions made by the
learned advocates for the respective parties and the
reasons assigned by the learned Court while rejecting
the application below Exhibit 48, it appears that the
petitioner filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881, before the learned
rd
3 Additional Chief Judicial Magistrate, Bhavnagar,
being Criminal Case No. 7512 of 2019. It was alleged
in the complaint that the complainant is the
proprietor of a firm and that business transactions
had taken place between the complainant and
respondent No.1. In connection with the said
transactions, the accused had issued seven cheques,
each amounting to Rs.10 lakh, which were returned
unpaid with the endorsement of “insufficient funds”.
It appears that the examination-in-chief and cross-
examination of the complainant had been completed.
Thereafter, the petitioner’s son was examined below
Exhibit 66.
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9. Learned advocate Mr. Sheth for the respondents
raised a contention that the petitioner’s son was not
included in the list of witnesses permitted to be
examined. However, as the respondents did not raise
any objection at that stage, this Court finds that the
said contention is not relevant for deciding the
present petitions, which have been filed challenging
the order passed below Exhibit 48. During the
examination-in-chief of the petitioner’s son, who was
examined below Exhibit 66, the following documents
were referred to by the said witness:
(i) Commercial Suit No. 13 of 2022;
(ii) Reply dated 19.11.2019 submitted by the
accused in response to the notice issued under
Section 138 of the Negotiable Instruments Act, 1881;
and
(iii) Ledger account along with bills and a certificate
under Section 65B of the Evidence Act.
Admittedly, the evidence of the petitioner’s son
was recorded below Exhibit 66. Thereafter, an
application came to be filed below Exhibit 48 seeking
permission to produce the aforesaid documents.
Respondent No. 2 objected to the production of the
said documents on the ground that they did not form
part of the complaint and were being produced from
the custody of the complainant. On the basis of the
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R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
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said objections, it was contended that the application
deserved to be rejected.
10. The learned Court, while rejecting the said
application, observed that the powers under Section
311 of the Code of Criminal Procedure and Section
165 of the Evidence Act are not to be exercised for
curing omissions or filling up lacuna in the evidence.
It was further observed that, in the absence of
sufficient cause for the non-production of the
documents at the appropriate stage, and considering
that the documents appeared to have been within
the knowledge and possession of the complainant,
the application deserved to be rejected.
11. To examine the reasons assigned by the learned
Court, this Court has referred to the decision
rendered by the Hon’ble Apex Court in Varsha Garg
v. State of Madhya Pradesh and Others , reported
in 2022 LiveLaw (SC) 662 . The relevant portion of
the said decision is reproduced hereinbelow:
“ 28 . Having clarified that the bar under Section 301 is
inapplicable and that. the appellant is well placed to pursue this
appeal, we now examine Section 311 of CrPC. Section 311
provides that the court "may":
(i) Summon any person as a witness or to examine any person in
attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been
examined.
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(GJHC240219772026)
This power can be exercised at any stage of any inquiry, trial or
other proceeding under the CrPC. The latter part of Section 311
states that the court "shall" summon and examine or recall and
re-examine any such person "if his evidence appears to the court
to be essential to the just decision of the case". Section 311
contains a power upon the court in broad terms. The statutory
provision must be read purposively, to achieve the intent of the
statute to aid in the discovery of truth.
29 . The first part of the statutory provision which uses the
expression "may" postulates that the power can be exercised at
any stage of an inquiry, trial or other proceeding. The latter part
of the provision mandates the recall of a witness by the court as
it uses the expression "shall summon and examine or recall and
re-examine any such person if his evidence appears to it to be
essential to the just decision of the case". Essentiality of the
evidence of the person who is to be examined coupled with the
need for the just decision of the case constitute the touchstone
which must guide the decision of the court. The first part of the
statutory provision is discretionary while the latter part is
obligatory.
30 . A two-Judge Bench of this Court in Mohanlal Shamji Soni13
while dealing with pari materia provisions of Section 540 of the
Criminal Code of Procedure, 1898 observed: (SCC p. 279, para
16)
"16. The second part of Section 540 as pointed out albeit
imposes upon the court an obligation of summoning or
recalling and re-examining any witness and the only condition
prescribed is that the evidence sought to be obtained must be
essential to the just decision of the case. When any party to
the proceedings points out the desirability of some evidence
being taken, then the court has to exercise its power under this
provision either discretionary or mandatory depending on the
facts and circumstances of each case, having in view that the
most paramount principle underlying this provision is to
discover or to obtain proper proof of relevant facts in order to
meet the requirements of justice."
Justice S Ratnavel Pandian, speaking for the two judge Bench,
noted that the power is couched in the widest possible terms
and calls for no limitation, either with regard to the stage at
which it can be exercised or the manner of its exercise. It is
only circumscribed by the principle that the “evidence to be
obtained should appear to the court essential to a just decision
of the case by getting at the truth by all lawful means.” In that
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R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
(GJHC240219772026)
context the Court observed:
“18 …Therefore, it should be borne in mind that the aid of the
section should be invoked only with the object of discovering
relevant facts or obtaining proper proof of such facts for a just
decision of the case and it must be used judicially and not
capriciously or arbitrarily because any improper or capricious
exercise of the power may lead to undesirable results.
Further it is incumbent that due care should be taken by the
court while exercising the power under this section and it
should not be used for filling up the lacuna left by the
prosecution or by the defence or to the disadvantage of the
accused or to cause serious prejudice to the defence of the
accused or to give an unfair advantage to the rival side and
further the additional evidence should not be received as a
disguise for a retrial or to change the nature of the case
against either of the parties.”
31 Summing up the position as it obtained from various decisions
of this Court, namely Rameshwar Dayal v. State of U.P., State of
W.B. v. Tulsidas Mundhra, Jamatraj Kewalji Govani v. State of
Maharashtra, Masalti v. State of U.P., Rajeswar Prosad Misra v.
State of W.B. and R.B. Mithani v. State of Maharashtra, the Court
held:
“27. The principle of law that emerges from the views
expressed by this Court in the above decisions is that the
criminal court has ample power to summon any person as a
witness or recall and re-examine any such person even if the
evidence on both sides is closed and the jurisdiction of the
court must obviously be dictated by exigency of the situation,
and fair play and good sense appear to be the only safe
guides and that only the requirements of justice command the
examination of any person which would depend on the facts
and circumstances of each case.”
32 The power of the court is not constrained by the closure of
evidence. Therefore, it is amply clear from the above discussion
that the broad powers under Section 311 are to be governed by
the requirement of justice. The power must be exercised
wherever the court finds that any evidence is essential for the
just decision of the case. The statutory provision goes to
emphasise that the court is not a hapless bystander in the
derailment of justice. Quite to the contrary, the court has a vital
role to discharge in ensuring that the cause of discovering truth
as an aid in the realization of justice is manifest.
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R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
(GJHC240219772026)
33 . Section 91 CrPC empowers inter alia any Court to issue
summons to a person in whose possession or power a document
or thing is believed to be, where it considers the production of the
said document or thing necessary or desirable for the purpose of
any investigation, inquiry, trial or other proceeding under the
CrPC.
34 Section 91 forms part of Chapter VII of CrPC which is titled
“Processes to Compel the Production of Things”. Chapter XVI of
the CrPC titled “Commencement of Proceedings before
Magistrates” includes Section 207 which provides for the supply
to the accused of a copy of the police report and other
documents in any case where the proceeding has been instituted
on a police report. Both operate in distinct spheres.
35 In the present case, the application of the prosecution for the
production of the decoding registers is relatable to the provisions
of Section 91 CrPC. The decoding registers are sought to be
produced through the representatives of the cellular companies
in whose custody or possession they are found. The decoding
registers are a relevant piece of evidence to establish the co-
relationship between the location of the accused and the cell
phone tower. The reasons which weighed with the High Court
and the Trial Court in dismissing the application are extraneous
to the power which is conferred under Section 91 on the one
hand and Section 311 on the other. The summons to produce a
document or other thing under Section 91 can be issued where
the Court finds that the production of the document or thing “is
necessary or desirable for the purpose of any investigation, trial
or other proceeding” under the CrPC. As already noted earlier,
the power under Section 311 to summon a witness is conditioned
by the requirement that the evidence of the person who is
sought to be summoned appears to the Court to be essential to
the just decision of the case.
36 PWs 33, 41, 43 and 48, who were the nodal officers of Idea,
Airtel, Reliance and Vodafone have already been examined.
During the examination of PW-41, the nodal officer of Airtel, the
witness specifically deposed during the course of examination
that:“2. Call detail of mobile number XXXXXXXXXX, which has
134 pages is Exhibit P-104, I sent the same detail of the call to
the police. Each page of the same has seal of Bharti Airtel on the
same. Call detail contains date and time wise detail of call and
short message services made/sent and received by the
customer. Additionally, location of the mobile number is available
in code number along with the time of the call or message for
which call detail is provided. Location of the call made by the
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mobile number in certain time has been shown with codes, I
cannot state name of the location today by seeing the code.
Location can be stated after decoding the same. We have coding
chart for location, by seeing the same location can be started. I
don’t have aforesaid chart along with me. Aforesaid chart is
available in the office.” (emphasis supplied)
37 The relevance of the decoding register clearly emerges from
the above statement of PW-41. Hence, the effort of the
prosecution to produce the decoding register which is a crucial
and vital piece of evidence ought not to have been obstructed. In
terms of the provisions of Section 311, the summoning of the
witness for the purpose of producing the decoding register was
essential for the just decision of the case.
38 Having dealt with the satisfaction of the requirements of
Section 311, we deal with the objection of the respondents that
the application should not be allowed as it will lead to filling in the
lacunae of the prosecution's case. However, even the said
reason cannot be an absolute bar to allowing an application
under Section 311.
39 . In the decision in Zahira Habibullah Sheikh (5) v. State of
Gujarat, which was more recently reiterated in Godrej Pacific
Tech. Ltd. v. Computer Joint India Ltd., the Court specifically
dealt with this objection and observed that the resultant filling of
loopholes on account of allowing an application under Section
311 is merely a subsidiary factor and the Court's determination of
the application should only be based on the test of the
essentiality of the evidence. It noted that:
“28. 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 side.
This must be left to the parties. But in weighing the evidence,
the court can take note of the fact that the best available
evidence has not been given, and can draw an adverse
inference. The court will often have to depend on intercepted
allegations made by the parties, or on inconclusive inference
from facts elicited in the evidence. In such cases, the court
has to act under the second part of the section. Sometimes
the examination of witnesses as directed by the court may
result in what is thought to be “filling of loopholes”. That is
purely a subsidiary factor and cannot be taken into account.
Whether the new evidence is essential or not must of course
depend on the facts of each case, and has to be determined
by the Presiding Judge.(emphasis supplied)
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40 The right of the accused to a fair trial is constitutionally
protected under Article 21. However, in Mina Lalita Baruwa
(supra), while reiterating Rajendra Prasad (supra), the Court
observed that it is the duty of the criminal court to allow the
prosecution to correct an error in interest of justice. In Rajendra
Prasad (supra), the Court had held that:
“8. Lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the
prosecution case. The advantage of it should normally go to
the accused in the trial of the case, but an oversight in the
management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can be foreclosed from
correcting errors. If proper evidence was not adduced or a
relevant material was not brought on record due to any
inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. After all, function of
the criminal court 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.”(emphasis
supplied)In the present case, the importance of the decoding
registers was raised in the examination of PW-41.
Accordingly, the decoding registers merely being additional
documents required to be able to appreciate the existing
evidence in form of the call details which are already on
record but use codes to signify the location of accused, a
crucial detail, which can be decoded only through the
decoding registers, the right of the accused to a fair trial is
not prejudiced. The production of the decoding registers fits
into the requirement of being relevant material which was not
brought on record due to inadvertence.
41 Finally, we also briefly deal with the objection of the
respondents regarding the stage at which the application under
Section 311 was filed. The respondents have placed reliance on
Swapan Kumar (supra), a two judge Bench decision of this
Court, to argue that the application should not be allowed as it
has been made at a belated stage. The Court in Swapan Kumar
(supra) observed:
“11. It is well settled that the power conferred under Section
311 should be invoked by the court only to meet the ends of
justice. The power is to be exercised only for strong and
valid reasons and it should be exercised with great caution
and circumspection. The court has wide power under this
Section to even recall witnesses for re-examination or
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further examination, necessary in the interest of justice, but
the same has to be exercised after taking into consideration
the facts and circumstances of each case. The power under
this provision shall not be exercised if the court is of the view
that the application has been filed as an abuse of the
process of law.”
12. Where the prosecution evidence has been closed long
back and the reasons for non-examination of the witness
earlier are not satisfactory, the summoning of the witness at
belated stage would cause great prejudice to the accused
and should not be allowed. Similarly, the court should not
encourage the filing of successive applications for recall of a
witness under this provision."
In the present appeal, the argument that the application was
filed after the closure of the evidence of the prosecution is
manifestly erroneous. As already noted above, the closure
of the evidence of the prosecution took place after the
application for the production of the decoding register and
for summoning of the witness under Section 311 was
dismissed. Though the dismissal of the application and the
closure of the prosecution evidence both took place on 13
November 2021, the application by the prosecution had
been filed on 15 March 2021 nearly eight months earlier. As
a matter of fact, another witness for the prosecution, Rajesh
Kumar Singh, was also released after examination and
cross-examination on the same day as recorded in the order
dated 13 November 2021 of the trial court.
42 The Court is vested with a broad and wholesome power, in
terms of Section 311 of the CrPC, to summon and examine or
recall and re-examine any material witness at any stage and the
closing of prosecution evidence is not an absolute bar. This Court
in Zahira Habibulla H. Sheikh (supra) while dealing with the
prayers for adducing additional evidence under Section 391
CrPC at the appellate stage, along with a prayer for examination
of witnesses under Section 311 CrPC explained the role of the
court, in the following terms:
“ 43. The courts have to take a participatory role in a trial.
They are not expected to be tape recorders to record
whatever is being stated by the witnesses. Section 311 of
the Code and Section 165 of the Evidence Act confer vast
and wide powers on presiding officers of court to elicit all
necessary materials by playing an active role in the
evidence-collecting process. They have to monitor the
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proceedings in aid of justice in a manner that something,
which is not relevant, is not unnecessarily brought into
record. Even if the prosecutor is remiss in some ways, it
can control the proceedings effectively so that the ultimate
objective i.e. truth is arrived at. This becomes more
necessary where the court has reasons to believe that the
prosecuting agency or the prosecutor is not acting in the
requisite manner. The court cannot afford to be wishfully or
pretend to be blissfully ignorant or oblivious to such serious
pitfalls or dereliction of duty on the part of the prosecuting
agency. The prosecutor who does not act fairly and acts
more like a counsel for the defence is a liability to the fair
judicial system, and courts could not also play into the
hands of such prosecuting agency showing indifference or
adopting an attitude of total aloofness.”(emphasis supplied)
Further, in Zahira Habibullah Sheikh (5) (supra), the Court
reiterated the extent of powers under Section 311 and held
that:
"27. The object underlying Section 311 of the Code is that
there may not be failure of justice on account of mistake of
either party in bringing the valuable evidence on record or
leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is
whether it is essential to the just decision of the case. The
section is not limited only for the benefit of the accused, and
it will not be an improper exercise of the powers of the court
to summon a witness under the section merely because the
evidence supports the case of the prosecution and not that
of the accused. The section is a general section which
applies to all proceedings, enquiries and trials under the
Code and empowers the Magistrate to issue summons to
any witness at any stage of such proceedings, trial or
enquiry. In Section 311 the significant expression that
occurs is "at any stage of any inquiry or trial or other
proceeding under this Code". It is, however, to be borne in
mind that whereas the section confers a very wide power on
the court on summoning witnesses, the discretion conferred
is to be exercised judiciously, as the wider the power the
greater is the necessity for application of judicial
mind."(emphasis supplied)
43 The Court while reiterating the principle enunciated in
Mohanlal Shamji Soni (supra) stressed upon the wide ambit of
Section 311 which allows the power to be exercised at any stage
and held that:
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“44. The power of the court under Section 165 of the
Evidence Act is in a way complementary to its power under
Section 311 of the Code. The section consists of two parts
i.e.: (i) giving a discretion to the court to examine the witness
at any stage, and (ii) the mandatory portion which compels
the court to examine a witness if his evidence appears to be
essential to the just decision of the court. Though the
discretion given to the court is very wide, the very width
requires a corresponding caution. In Mohanlal v. Union of
India this Court has observed, while considering the scope
and ambit of Section 311, that the very usage of the words
such as, “any court”, “at any stage”, or “any enquiry or trial or
other proceedings”, “any person” and “any such person”
clearly spells out that the section has expressed in the
widest possible terms and do not limit the discretion of the
court in any way. However, as noted above, the very width
requires a corresponding caution that the discretionary
powers should be invoked as the exigencies of justice
require and exercised judicially with circumspection and
consistently with the provisions of the Code. The second part
of the section does not allow any discretion but obligates and
binds the court to take necessary steps if the fresh evidence
to be obtained is essential to the just decision of the case,
"essential" to an active and alert mind and not to one which
is bent to abandon or abdicate. Object of the section is to
enable the court to arrive at the truth irrespective of the fact
that the prosecution or the defence has failed to produce
some evidence which is necessary for a just and proper
disposal of the case. The power is exercised and the
evidence is examined neither to help the prosecution nor the
defence, if the court feels that there is necessity to act in
terms of Section 311 but only to subserve the cause of
justice and public interest. It is done with an object of getting
the evidence in aid of a just decision and to uphold the truth.
(emphasis supplied)
While reiterating the decisions of this Court in Karnel Singh v.
State of M.P.Paras Yadav v. State of Bihar, Ram Bihari Yadav v.
State of Bihar and Amar Singh v. Balwinder Singh this Court held
that the court may interfere even at the stage of appeal:
“64. It is no doubt true that the accused persons have been
acquitted by the trial court and the acquittal has been upheld,
but if the acquittal is unmerited and based on tainted
evidence, tailored investigation, unprincipled prosecutor and
perfunctory trial and evidence of threatened/terrorised
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R/SCR.A/4108/2026 JUDGMENT DATED: 23/10/2026
(GJHC240219772026)
witnesses, it is no acquittal in the eye of the law and no
sanctity or credibility can be attached and given to the so-
called findings. It seems to be nothing but a travesty of truth,
fraud on the legal process and the resultant decisions of
courts coram non judis and non est. There is, therefore,
every justification to call for interference in these appeals.”
12. The Apex Court, in the aforesaid decision, has held
that an application filed under Section 311 of the
Code of Criminal Procedure cannot be rejected
merely on the ground that allowing the same would
result in filling up a lacuna in the prosecution’s case.
The possibility of certain loopholes being filled as a
consequence of allowing such an application is
merely a subsidiary factor, and the determination of
the application by the Court should be based on the
test of the essentiality of the evidence sought to be
brought on record. In the present case, the reply to
the notice issued under Section 138 of the Negotiable
Instruments Act, 1881, which is sought to be
produced, is, in the opinion of this Court, an
important document for arriving at a just decision in
the case. Similarly, the ledger account reflecting the
entries relating to the business transactions, along
with the bills, would also have a bearing on the
complainant’s case. Merely because the said
documents were not produced earlier or annexed to
the complaint, the complainant cannot be precluded
from producing them on record. The fact that the
documents were referred to during the course of the
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(GJHC240219772026)
evidence of the witness cannot, by itself, be
considered a substantial ground for rejecting the
application.
13. In the opinion of this Court, the essential condition
for exercising the powers under Section 311 of the
Code of Criminal Procedure is that the evidence
sought to be obtained must be essential for the just
decision of the case. Where any party to the
proceedings points out the desirability of recording
certain evidence, the Court is required to exercise the
power conferred under the said provision, which may
be discretionary or mandatory depending upon the
facts and circumstances of the case, to discover or
obtain proper proof of the relevant facts in order to
meet the ends of justice. The decision relied upon by
learned advocate for the respondents pertains to the
expeditious disposal of cases under the Negotiable
Instruments Act, 1881, this Court is in agreement
with the ratio laid down by the Apex Court in that
regard. However, at the same time, the Court must
bear in mind that justice should not be sacrificed in
the pursuit of expeditious disposal. It was contended
that proceedings under Section 138 of the Negotiable
Instruments Act, 1881, are summary in nature and
that, in such circumstances, the learned Court ought
not to have permitted the examination of a witness
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(GJHC240219772026)
whose name was not included in the list of witnesses.
In the opinion of this Court, when the interests of
justice demand the examination of a witness to arrive
at a just decision and the evidence sought to be
produced is essential for such a decision, the Court
ought to exercise its powers to permit such evidence
to be brought on record.
14. Resultantly, present petitions are allowed. The
impugned orders dated 20.12.2025 passed below
Exh.48 in Criminal Case No.7512 of 2019, below
Exh.44 in Criminal Case No.7515 of 2019, and below
Exh.49 in Criminal Case No.7514 of 2019 by the
rd
learned 3 Additional Chief Judicial Magistrate,
Bhavnagar, are hereby quashed and set aside.
(M. K. THAKKER,J)
M.M.MIRZA
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