M/S Silver And Rashi Construction And Anr vs. State Of Maharashtra And Anr

Held

The High Court held that there was no reason to set aside the impugned order dated May 17, 2022. The Court considered the factual aspects and documents on record. The Magistrate had observed that the core question was whether the amount paid by the accused was towards the loan or professional charges. Therefore, to ascertain whether the loan was advanced and repaid, it was essential for a just decision to recall the complainant and examine his chartered accountant. The High Court found no infirmity in this reasoning and dismissed the petition. The operative direction was the rejection of the Criminal Writ Petition, upholding the Magistrate's order allowing the application under Section 311 Cr.P.C.

Facts

The Petitioners, M/s. Silver & Rashi Constructions and its partners, challenged an order dated May 17, 2022, by the Metropolitan Magistrate, Sewree, Mumbai. This order allowed an application by Respondent No. 2 (complainant) under Section 311 of the Criminal Procedure Code (Cr.P.C.) to examine a witness. The original complaint was filed under Section 138 of the Negotiable Instruments Act, 1881, for dishonor of three cheques totaling Rs. 14,50,000/- issued towards repayment of a loan. The cheques were returned with the remark 'payment stopped by drawer'. The trial court had already taken the complainant's examination-in-chief, recorded the accused's statement under Section 313 Cr.P.C., and examined a defence witness. The petitioners argued the application was belated and intended to fill up lacunae, especially after the defence presented evidence of loan repayment, including bank statements and a bank official's testimony.

Key Issues

1. Whether the learned Magistrate erred in allowing the complainant's application under Section 311 of the Cr.P.C. to recall and examine a witness, considering the stage of the proceedings and the defence's evidence of loan repayment? Petitioner's Arguments: The petitioners contended that the application under Section 311 Cr.P.C. was filed belatedly to fill up lacunae in the complainant's case. They argued that the complainant's examination-in-chief and the demand notice were silent on the nature of the payments made by the accused. The petitioners asserted they had repaid the loan amount, supported by bank statements and the examination of a bank official, and that the complainant filed the application only after learning of the defence's case. They also stated that the demand notice did not mention any amounts being refunded towards TDS, GST, or fees. Revenue/State's Arguments: Respondent No. 2 argued that there was no infirmity in the impugned order and that the examination of the witness was necessary for a just decision. The complainant's case was that he advanced a loan, and the defence was that the entire amount was paid. The complainant contended that the payments made by the accused were not towards the loan transaction but were professional charges, as the complainant is a chartered accountant and the accused is his client.