JUDGMENT : Rakesh Kainthla, J. The petitioner-accused filed an application under Section 311 of Cr.PC for allowing him to produce the BPL record of the respondent-complainant for the years 2011 to 2016. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. It was asserted that the accused had proved copies of various complaints filed by the complainant before learned Additional Chief Judicial Magistrate (ACJM), Court No. 1, Paonta Sahib, learned Judicial Magistrate First Class (JMFC), Court No.2, Paonta Sahib and learned Judicial Magistrate First Class (JMFC), Shillai, District Sirmour. The total amount involved in the complaints was around Rs.50 lacs. The complainant stated in his cross-examination that he had no source of income except agricultural land. The complainant was a member of the Below Poverty Line (BPL) family for five years. A person belonging to the BPL category earns less than Rs.6400/- per month in rural areas and Rs.11,850/- per month in urban areas. The complainant also constructed a pucca house at Paonta Sahib and Village Shakoli. He claimed that he had advanced a loan of more than Rs.50.00 lacs to various persons. Hence, it was prayed that the application be allowed and the record showing that the complainant was a member of Below Poverty Line from the year 2011 to 2016 be proved by examining the Secretary of Gram Panchayat at Sakholi. 3. The application was opposed by filing a reply. 4. Learned Trial Court held that the statement of the accused was recorded on 14.12.2021. He failed to produce the evidence despite many opportunities. He examined one witness on 28.4.2022. Subsequently, he filed an application under Section 311 of Cr.P.C., which was allowed and the accused was permitted to produce the additional evidence. The statements of two witnesses were recorded. The matter was listed for arguments when another application was filed. The conduct of the accused showed that he wanted to prolong the proceedings. Therefore, the application was dismissed. 5. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed asserting that the learned Trial Court erred in dismissing the application. Basic principles of criminal justice were violated while dismissing the application. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 6. Basic principles of criminal justice were violated while dismissing the application. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 6. The petition is opposed by filing a reply making preliminary submissions regarding the lack of maintainability and cause of action, and the accused being estopped from filing the present application by his act and conduct. The contents of the application were denied on merits. It was asserted that the accused had sought time to lead defence evidence. He failed to lead defence evidence despite repeated opportunities. He had earlier filed an application under Section 311 of Cr.PC which was allowed. No reason has been assigned for not filing the present application earlier. Therefore, it was prayed that the present petition be dismissed. 7. I have heard Mr. Shyam Singh Chauhan, learned Counsel for the petitioner-accused and Mr. Prakash Sharma, learned Counsel for the respondent-complainant. 8. Mr. Shyam Singh Chauhan, learned counsel for the petitioner-accused submitted that the learned Trial Court erred in dismissing the application solely on the ground of the delay. Evidence sought to be produced on record was relevant and could not have been ignored simply on the grounds of delay. The other party can always be compensated in terms of money for the delay and the delay is no reason to dismiss the application. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 9. Mr. Prakash Sharma, learned counsel for the respondent-complainant submitted that there is no infirmity in the orders passed by the learned Trial Court. It was rightly held that the application was filed for prolonging the trial without any justification. The document is not relevant. Therefore, it was prayed that the present petition be dismissed. 10. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 11. The present application has been filed to show that the complainant did not have the financial capacity to advance the amount, which he claims to have advanced. The copies of various complaints were filed to show that the complainant claimed to have disbursed a loan worth more than Rs.50.00 lacs. 11. The present application has been filed to show that the complainant did not have the financial capacity to advance the amount, which he claims to have advanced. The copies of various complaints were filed to show that the complainant claimed to have disbursed a loan worth more than Rs.50.00 lacs. He was a member of the BPL Category and his monthly income could not have been more than Rs.6,400/- per month in rural areas and Rs.11850/- per month in urban areas. It was laid down by the Hon’ble Supreme Court in Tedhi Singh Versus Narayan Dass Mahant (2022) 6 SCC 735 that the accused has a right to demonstrate that the complainant did not have the financial capacity to advance the loan stated to have been advanced by him. It was observed:- “7. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act provides that the Court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of ‘probable defence' has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441 ). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist.” 12. It was further held that the accused has a right to demonstrate that the complainant did not have the financial capacity. It was observed:- “9. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist.” 12. It was further held that the accused has a right to demonstrate that the complainant did not have the financial capacity. It was observed:- “9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act, the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not civil suits. At the time, when the complainant gives his evidence unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.” 13. This question was also considered by the Hon’ble Supreme Court in Basalingappa Versus Mudibasappa (2019) 5 SCC 418 and it was held that where the financial capacity to pay Rs.6,00,000/- was questioned and there was no satisfactory reply the accused had raised a probable defence. It was observed:- “26. This question was also considered by the Hon’ble Supreme Court in Basalingappa Versus Mudibasappa (2019) 5 SCC 418 and it was held that where the financial capacity to pay Rs.6,00,000/- was questioned and there was no satisfactory reply the accused had raised a probable defence. It was observed:- “26. Applying the preposition of law as noted above, in facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that a cheque was issued in relation to a loan of Rs. 25,000/-taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received a monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs. 4,50,000/-to Balana Gouda towards sale consideration. Payment of Rs. 4,50,000/-being admitted in the year 2010 and further payment of loan of Rs. 50,000/-with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per the own case of the complainant, he made a payment of Rs. 18 lakhs. During his cross-examination, when the financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts. 27. There was another evidence on the record, i.e., a copy of the plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of a loan of Rs. 7 lakhs given to one Balana Gouda in December 2009. Thus, there was evidence on record to indicate that in December 2009, he gave Rs. 27. There was another evidence on the record, i.e., a copy of the plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of a loan of Rs. 7 lakhs given to one Balana Gouda in December 2009. Thus, there was evidence on record to indicate that in December 2009, he gave Rs. 7 lakhs in a sale agreement, in 2010, he made a payment of Rs. 4,50,000/-towards sale consideration and further, he gave a loan of Rs. 50,000/-for which complaint was filed in 2012 and further loan of Rs. 6 lakhs in November 2011. Thus, during the period from 2009 to November 2011, an amount of Rs. 18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs. 8 lakhs only. The High Court observed that though the complainant is a retired employee, the accused did not even suggest that pension is the only means for the survival of the complainant. The following observations were made in Paragraph 16 of the judgment of the High Court: "17. Though the complainant is a retired employee, the accused did not even suggest that a pension is the only means for the survival of the complainant. Under these circumstances, the Trial Court's finding that the complainant failed to discharge his initial burden of proof of lending capacity is perverse." 28. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in the examination-in-chief, the complainant has not mentioned as to on which date, the loan of Rs. 6 lakhs was given to the accused. It was during cross-examination, he gave the date as November 2011. Under Section 118 (b), a presumption shall be made as to the date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post-dated cheque was given to him in November 2011 bearing dated 27.02.2012. Under Section 118 (b), a presumption shall be made as to the date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post-dated cheque was given to him in November 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant, especially Para 1 of the complaint, which is extracted as below: "1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out the urgent and family necessary sum of 6,00,000/-(Rupees Six Lakh) and on account of long-standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lends hand loan Rs. 6,00,000/-(Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honoured. But to the surprise of the Complainant on presentation of the same for collection through his Bank, the Cheque was returned by the Bank with an endorsement "Funds Insufficient" on 01-03-2012." 29. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding the date on which the loan was given on one side and what was said in cross-examination in the other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply to the notice denying the execution of the cheque or legal liability. Even before the trial court, the appellant-accused has not denied his signature on the cheque. 30. We are of the view that when evidence was led before the Court to indicate that apart from a loan of Rs. 6 lakhs given to the accused, within 02 years, an amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. The court cannot insist on a person to lead negative evidence. 6 lakhs given to the accused, within 02 years, an amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. The court cannot insist on a person to lead negative evidence. The observation of the High Court that the trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence.” 14. Reliance was also placed on behalf of the complainant upon the judgment of the Hon’ble Supreme Court in John K. Abraham Versus Simon C. Abraham & Another (2014) 2 SCC 236 wherein it was held:- “9. It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavy upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant. 10. Keeping the said statutory requirements in mind, when we examine the facts as admitted by the respondent-complainant, as rightly concluded by the learned trial Judge, the respondent was not even aware of the date when the substantial amount of Rs.1,50,000/-was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. Apart from the said serious lacuna in the evidence of the complainant, he further admitted as PW.1 by stating once in the course of the cross-examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. 15. 15. Therefore, it is apparent from the judgments of the Hon’ble Supreme Court that the accused has a right to challenge the financial capacity of the complainant and to show that a complainant never had any financial capacity to advance the amount which he claims to have advanced. Therefore, the evidence sought to be brought on record is highly relevant. 16. The learned Trial Court was influenced by the fact that the application was filed belatedly without any justification. There is a force in the submission on behalf of the petitioner/ accused that the application under Section 311 of Cr.PC can be filed at any stage and the ultimate test is whether the evidence is relevant or not. It was laid down by the Hon’ble Supreme Court in Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986 that the power under Section 311 Cr.P.C. can be exercised at any stage. It was observed:- 31. 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. 32. 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. 33. 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case”. 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case”. The essentiality of the evidence of the person who is to be examined coupled with the need for a just decision of the case constitutes 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. 34. A two-judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed : “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.” 35. 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 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.” 36. 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.” 37. 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.” (Emphasis supplied) 17. Therefore, the application cannot be dismissed on the grounds of the delay. 18. It is true that the conduct of the petitioner-accused has given the impression that he wanted to prolong the trial. Therefore, the application cannot be dismissed on the grounds of the delay. 18. It is true that the conduct of the petitioner-accused has given the impression that he wanted to prolong the trial. He had taken various adjournments to complete the defence evidence and after the evidence was completed, he filed an application under Section 311 of Cr.PC. He examined the witnesses and thereafter again filed an application under Section 311 of Cr.PC. There is a force in the submission on behalf of the complainant that the accused could have filed an application for leading all the evidence instead of filing repeated applications. However, the failure to file a single application by itself is not sufficient to dismiss the application and the other side can always be compensated in terms of money. 19. Therefore, the present application is allowed and the petitioner-accused is permitted to bring the documents regarding the BPL status of the complainant on record, subject to the payment of cost of Rs.5,000/-, which shall be condition precedent for leading additional evidence. 20. The parties through their respective counsel are directed to appear before the learned Trial Court on 27.3.2024. 21. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.