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TMI Blog2022 (9) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking quashing of order dated 11.02.2019 (Annexure P-7), passed by the Court of learned Additional Sessions Judge, Tarn Taran, thereby allowing the application under Section 311 Cr.P.C., by reversing the order dated 17.05.2018 (Annexure P-6), passed by the Court of learned Chief Judicial Magistrate, Tarn Taran in Complaint No.61 of 31.03.2016 (Annexure P-1) and Summoning Order dated 16.09.2016 (Annexure P-2). The brief facts of the case are that the respondent, being the complainant, instituted a complaint on 31.03.2016, under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as - the Act) against the petitioners as in order to discharge legal debt amounting to Rs.13,58,253/-, the petitioners issued cheque dated 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 reads as under :- "After hearing Ld. Counsel for the parties and having gone through the record carefully, I found no merit in the application as the complainant did not rely upon these witnesses and documents, while leading his preliminary evidence and it has not been mentioned in the application as to how and why the necessity arose to examine those witnesses at this stage. A witness, who was not deemed necessary by the complainant while leading preliminary evidence, cannot be termed as a necessary witness after appearance of the accused. Hence, the application of the complainant is found without any merit and the same is hereby, dismissed, without prejudice to the merit of the case. Earlier the case was fixed for evidence of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Record Room. (Bishan Saroop) Additional Sessions Judge, Tarn Taran." Hence this petition by the petitioner-accused. It has been contended by the learned counsel for the petitioner that the application under Section 311 Cr.P.C. was filed by the respondent-complainant to fill up the lacuna and the Court has not satisfied itself that the additional evidence is required for the just decision of the case. Per contra, learned counsel for the respondent contends that the order dated 11.12.2019 passed by learned Additional Sessions Judge, Tarn Taran is perfectly legal and valid. It has been contended by the learned counsel for the complainant-respondent that no prejudice will be caused to the petitioners as the opportunity to cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertence, the Court should be magnanimous in permitting such mistakes to be rectified. k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m) The power must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that the present petitions are liable to be dismissed as in para 1 of the complaint, specific stand has been taken that proper account books are being maintained during its regular course of business and the respondent-complainant wanted to examine the Accountant of the Firm, only in order to prove the factum of the account books and outstanding amount in order to prove the legally enforceable debt and the said material is very important for the just decision of the complaint and further, by summoning the income tax records, the complainant wanted to substantiate the legal debt and the outstanding amount of the accused Firm. Further, no prejudice will be caused to the petitioners as the opportunity to cross-examine the witne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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