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2024 DIGILAW 706 (GUJ)

Patel Narayanbhai Gordhanbhai v. State Of Gujarat

2024-04-02

NISHA M.THAKORE

body2024
ORDER : 1. This application is filed under Section 378(4) of the Code of Criminal Procedure at the instance of the original complainant seeking special leave to appeal in order to challenge the judgment and order dated 03.04.2019 passed by the learned Additional Chief Judicial Magistrate, Idar in Criminal Case No.559 of 2019. By the said judgment and order, the learned Magistrate has recorded acquittal of the respondent no.2- original accused for the offence alleged under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the “Act”). 2. In nutshell the case of the complainant before the trial Court was that the complainant is an agriculturist holding agricultural land at village Laxmanpura, Tal: Idar, Dist. Sabarkantha and the son of the complainant is engaged in an independent business and is residing at Gandhinagar. The complainant, therefore, claims to have his own source of income. It is further contended that the complainant and the respondent - accused were having friendly relations and the respondent-accused had approached the complainant seeking hand loan, for which, the complainant had extended financial help of an amount of Rs.11,59,000/-. 2.1. It is the case of the complainant that the aforesaid amount was paid mainly through RTGS and has explained the details of such financial help by contending that an amount of Rs.2,20,000/- was paid on 20.01.2017 through cheque of Axis Bank, Rs.1,65,000/- on 10.04.2018 through cheque of Gramin Bank, Rs.3,15,000/- on 10.04.2017 through cheque of Gramin Bank and an amount of Rs.2,00,000/- was paid in cash on 20.05.2017, whereas, the amount of Rs.2,59,000/- was paid in cash to the accused on 30.05.2017. By referring to the aforesaid details, it is contended by the complainant that total amount of Rs.11,59,000/- on various occasions was given by hand loan to the respondent - accused. 2.2. The complainant has further submitted that out of the aforesaid amount the respondent accused had made part payment of an amount of Rs.2,50,000/-. It was submitted that an amount of Rs.50,000/- was repaid by cheque on 18.07.2018, whereas further amount of Rs.2,00,000/- was repaid by cheque on 19.07.2018. Thus, according to the complainant an amount of Rs.9,09,000/- was outstanding to be realized from the respondent – accused. 2.3. It was submitted that an amount of Rs.50,000/- was repaid by cheque on 18.07.2018, whereas further amount of Rs.2,00,000/- was repaid by cheque on 19.07.2018. Thus, according to the complainant an amount of Rs.9,09,000/- was outstanding to be realized from the respondent – accused. 2.3. It is the case of the complainant that against the aforesaid remaining outstanding amount, the respondent-accused had issued cheque bearing no.003994 dated 1.12.2018 drawn from his account with Sabarkantha District Central Cooperative Bank, Goral Branch duly signed by the respondent-accused drawn in the name of the complainant. The said cheque was presented for realization by the complainant on 12.02.2019. However, the cheque was dishonoured on the ground of insufficient funds which was returned back by the Bank on 15.02.2019. In such circumstances, the complainant was constrained to initiate proceedings against the respondent- accused by raising the demand notice dated 19.02.2019 for the remaining outstanding amount of Rs.9,09,000/-. In the aforesaid notice, the specific details were addressed by the complainant with regard to the hand loan extended and part payment received, the complainant was called upon by the respondent- accused to make good the payment of the remaining outstanding amount within a period of 15 days, failing which, the complainant had cautioned to proceed with initiation of proceedings under Section 138 of the Act. The notice though duly served, respondent-accused had failed to respond to such legal notice and on expiry of statutory period the complainant had approached the Court of learned Additional Chief Judicial Magistrate, Idar by lodging the complaint under Section 138 of the Act on 05.04.2019. The said complaint was registered as Criminal Case No.559 of 2019 on 04.04.2019. 3. Considering the averments made in the complaint and the verification of the complainant, as recorded by the learned Magistrate on 03.04.2019 below Exh.1, having noticed the prima facie ingredients of maintainability of complaint under Section 138 of the Act, the learned Magistrate had issued summons upon the respondent accused. 3.1. The summons were duly served and the respondent – original accused had appeared before the trial Court. The statement of the accused at Exh.5 under Section 251 of the Code of Criminal Procedure was recorded on 19.08.2019 where he had denied commission of offence and the trial Court had proceed with the summary trial of the accused. 3.2. 3.1. The summons were duly served and the respondent – original accused had appeared before the trial Court. The statement of the accused at Exh.5 under Section 251 of the Code of Criminal Procedure was recorded on 19.08.2019 where he had denied commission of offence and the trial Court had proceed with the summary trial of the accused. 3.2. During the course of trial, the original complainant had tendered the affidavit of examination of chief at Exh.7 on 26.09.2019 and in the aforesaid affidavit, the reliance was placed on the documentary evidence brought on record vide Exh.3. This include the disputed cheque dated 1.12.2018 it was admitted as evidence and mark as Exh.10. The return memo issued by the concerned Bank was produced on record and was admitted as an evidence at Exh.11. The intimation letter issued by the Bank was also admitted as an evidence at Exh.12. The postal slip issued by the Postal Department in respect of demand notice was marked as Exh.13. The copy of the demand notice was admitted as an evidence at Exh.14. The online track report of the Postal Department confirming the service of notice upon respondent accused was produced on record and was admitted as an evidence at Exh.15. Apart from the aforesaid documentary evidence, the complainant had also brought on record the vouchers containing signed by the accused at Exh.17. 3.3. The complainant was examined almost after 2 years i.e. on 06.08.2021 and was further cross examined on 15.09.2021. During the recording of the evidence, the complainant had mainly reiterated his case as stated in the original complaint. In the cross examination, the respondent- accused had challenged the document, more particularly, Exh.16 vouchers alleged to have been signed by the accused and the promissory note relied upon by the complainant at Exh.17, wherein, the respondent accused had raised specific defence disputing his signature on the aforesaid documents. Apart from the aforesaid defence, the respondent- accused had cross examined the complainant on the fact that the amount of Rs.1,50,000/- was also realized by the complainant and had thereby disputed the actual outstanding dues to be realized from the respondent- accused. The specific question was raised to the complainant about repayment of an amount of Rs.1,00,000/- by the accused by cheque on 15.01.2018 and further amount of Rs.50,000/- by cheque dated 25.07.2018 being realized by the complainant. The specific question was raised to the complainant about repayment of an amount of Rs.1,00,000/- by the accused by cheque on 15.01.2018 and further amount of Rs.50,000/- by cheque dated 25.07.2018 being realized by the complainant. While responding to such defence, the complainant though had fairly admitted about the realization of the aforesaid additional amount, however had reiterated his case with regard to realization of the outstanding amount from the respondent- accused. During his further cross examination on 15.09.2021 the complainant had being enable to clarify as to on which date the accused had visited the house of the complainant. An attempt was made by the respondent-accused disputing the due service of demand notice. The attempt was also made to raise a defence that the cheque was tendered as a security cheque and the ink contained of the cheque and the signature on the disputed cheque differed which goes to indicate that the details were incorporated at different time. The defence was also raised disputing the difference in signature on the cheque as compared to the documents relied upon by the complainant. 4. The respondent accused had also placed on record his examination in chief at Exh.32 and was thereafter cross examined on 17.12.2021. 4.2. Along with the said deposition, the respondent had also placed on record the documentary evidence vide list at Exh.31 on 17.12.2021.Apart from the aforesaid submission, the respondent-accused had offered himself in the witness box and he was cross examined by the complainant on 10.03.2022 at Exh.32. The respondent accused had placed on record the written agreement entered upon between the parties on a non judicial stamp paper executed on 14.05.2017. By the said document, the respondent- accused had raised the defence that the security cheque was issued at the stage of execution of such agreement. The Bank statement account of the accused with Sabarkantha District Central Cooperative Bank, Goral Branch for the period between 1.3.2017 to 24.12.2018 has been placed on record which is admitted as Exh.44. The respondent- accused had also referred to application addressed to the concerned Bank instructing about the stop payment of the disputed cheque which is admitted as evidence at Exhs. 42 and 43. The copy of the cheque issued by the accused dated 12.01.2018 is admitted as an evidence at Exh.45. The vouchers acknowledging the payment has also been brought on record at Exhs. 42 and 43. The copy of the cheque issued by the accused dated 12.01.2018 is admitted as an evidence at Exh.45. The vouchers acknowledging the payment has also been brought on record at Exhs. 46 and 48 with regard to the part payment in reference to the cheques dated 12.01.2018 and 25.7.2018 has been brought on record. The copy of the cheque issued by the accused to the complainant on 25.07.2018 has been admitted as an evidence at Exh.47. The respondent -accused has also placed on record the details of the bank account statement right from the period of 11.1.2018 to 20.01.2018 at Exh.49 and from 21.07.2018 to 30.07.2018 at Exh.50, in support of defence raised by the respondent -accused about realization of the cheque issued on 12.01.2018 and 25.07.2018 towards the part payment to the complainant for an amount of Rs.1,00,000/- and Rs.50,000/- respectively. Thus, the respondent accused has raised a specific defence disputing the outstanding amount of Rs.9,09,000/- as contended by the complainant in the original complaint by raising a specific defence of realization of further amount of Rs.2,50,000/-. 4.3. The complainant has also cross examined the respondent accused who has otherwise disputed the execution of the vouchers and the promissory note produced on record by the complainant at Exhs. 16 & 17. 4.4. The record further indicates that an application was also tendered by the respondent -accused seeking permission to examine the bank officer of the concerned bank as witness. Such application has been tendered on 26.5.2022 at Exh.34(A) which was allowed by the learned Magistrate by order dated 14.7.2022 thereby directing concerned office to appear as a witness. The witness Vinubhai Nathabhai Patel has appeared before the trial Court whose evidence has been recorded at Exh.41. The documents relied upon by the respondent -accused has been verified at the instance of the said witness and has been admitted as an evidence. While cross examining the said witness, the factum of disputed cheque dishonoured on the ground of insufficient fund has been brought on record. About stop instruction, the said witness has fairly pointed out that said cheque was not included in the letter produced on record at page 43 addressed by the accused instructing the bank for stop payment. While cross examining the said witness, the factum of disputed cheque dishonoured on the ground of insufficient fund has been brought on record. About stop instruction, the said witness has fairly pointed out that said cheque was not included in the letter produced on record at page 43 addressed by the accused instructing the bank for stop payment. With such evidence being brought on record, the matter was notified for recording of the statement and statement of the respondent-accused was recorded under Section 313 of the Code on 1.10.2022. 5. Noticing the defence which has emerged on record the complainant had after conclusion of the evidence stage, moved application for leading further evidence under Section 311 of the Code at Exh.53 on 22.11.2022. By the said application, the complainant had disclosed his intention to bring on record mainly three documents which included the written agreement dated 30.11.2018 executed by the complainant along with his brother, voucher dated 15.1.2018 executed by the respondent accused and the voucher dated 1.5.2018 executed by the accused in favour of complainant which was executed in presence of the witness to whom he intende to examine. The aforesaid application was objected by the respondent-accused and after hearing the respective parties, the learned Magistrate by detailed order dated 22.11.2022 has not entertained such application. While dismissing the said application, the learned Magistrate noticed that the case which the complainant intended to bring on record with regard to simultaneous transaction being entered with the complainant and the son was not forming part of the case put forward initially in the complaint. With regard to the document which the complainant intended to bring on record, the learned Magistrate noticed that no facts referring to the aforesaid transactions were averred in the original complaint. Indisputably, the aforesaid order dismissing the application of the complainant under Section 311 of the Code has not been challenged further by the complainant and the matter was thereafter proceeded for final adjudication. The counsel for the respective parties have placed on record the written submissions and the matter was finally decided. 6. The learned Magistrate upon appreciation of the documents placed for consideration by the complainant has satisfied with regard to maintainability of the complaint. The counsel for the respective parties have placed on record the written submissions and the matter was finally decided. 6. The learned Magistrate upon appreciation of the documents placed for consideration by the complainant has satisfied with regard to maintainability of the complaint. The learned Magistrate while considering the explanation which the complainant intended to bring on record as against the defence put forward by the respondent accused with regard to subsequent payment of the amount of Rs.1 lakhs on 15.01.2018 and Rs.50,000/- on 18.07.2018 held that the application preferred by the complainant under Section 311 of the Code has been dismissed, which has not been challenged further. The learned Magistrate on comparison of the signatures on the documents produced at Exhs. 16 & 17 i.e. the vouchers and the promissory note as regards acknowledgment of the additional amount of Rs.4,49,000/- in cash by the accused as alleged by the complainant, as against the natural signature of the accused reflected in the disputed cheque at Exh.4 and other relevant documents produced at Exhs. 31, 32, 45, 47 and 10, arrived at a conclusion that the signatures vary and are forged. The learned Magistrate accepted the defence put forward by the respondent – accused that the said documents were concocted and no such transaction as alleged by the complainant had taken place with the respondent-accused. While appreciating the defence put forward by the respondent-accused in light of the cross examination of the complainant, the learned Magistrate arrived at a finding that there was part payment made by the respondent accused of an amount of Rs.1 lakhs on 15.01.2018, Rs.50,000/- on 18.07.2018, Rs.2 lakhs on 19.07.2018 and Rs.50,000/- on 25.07.2018, in all Rs.4 lakhs were paid to the complainant, whereas, going by the recitals appearing in the agreement produced at Exh.34, the complainant was entitled to repayment of an amount of Rs.3 lakhs from the respondent - accused. Thus, the offence punishable under Section 138 of the Act was not attracted. In other words, the learned Magistrate has not believed the case put forward by the complainant with regard to outstanding dues of an amount of Rs.9,09,000/- and the cheque being issued towards the realization of the aforesaid dues and has thereby recorded the order of acquittal. Hence, this appeal at the instance of the original complainant. 7. Mr. In other words, the learned Magistrate has not believed the case put forward by the complainant with regard to outstanding dues of an amount of Rs.9,09,000/- and the cheque being issued towards the realization of the aforesaid dues and has thereby recorded the order of acquittal. Hence, this appeal at the instance of the original complainant. 7. Mr. Rajesh K. Shah, learned advocate has appeared on behalf of the appellant- original complainant. The main ground as urged by the complainant at the admission stage was about the application moved under Section 311 of the Code. It was submitted that the learned Magistrate had denied the opportunity to put forward the explanation, as against the late defence taken by the accused persons at the stage of recording of further statement by contending that no reply was given to the statutory notice and at the end of the trial, the defence was raised about the entire amount being paid. Considering the aforesaid ground, this Court by order dated 27.02.2023 had issued notice upon the respondent accused. 8. Mr. Dipen A. Sankhesara, learned advocate has appeared on behalf of the respondent – original accused. Considering the nature of dispute involved, by order dated 20.07.2023 this Court had called for Record and Proceedings of Criminal Case. Learned advocates appearing on behalf of the respective parties were heard at length and the matter was reserved for orders. 9. Mr. Rajesh Shah, learned advocate for the appellant – original complainant has, at the outset, referred to the nature of transaction involved. The attention of this Court was invited to the fact that though the amounts of Rs.11,59,000/- was given in installments to the respondent-accused, however, the entire transaction between the parties is evident from the supporting documents which has been placed for consideration before the trial Court. According to him, the amount of Rs.2,20,000/- was realized on 20.01.2017 followed by the amount of Rs.1,65,000/- on 10.04.2017 and Rs.3,15,000/- on 10.04.2017 through cheque. Thus, total amount of Rs.7 lakhs was transferred to the accused through cheque. It was further submitted that amount of Rs.2 lakhs was given in cash on 28.05.2017 followed by amount of Rs.2,59,000/- on 30.05.2017 in cash to the respondent accused. The aforesaid transaction was evident from the supporting document which included voucher dated 28.05.2017 produced at Exh.16 and the promissory note produced at Exh.17. It was further submitted that amount of Rs.2 lakhs was given in cash on 28.05.2017 followed by amount of Rs.2,59,000/- on 30.05.2017 in cash to the respondent accused. The aforesaid transaction was evident from the supporting document which included voucher dated 28.05.2017 produced at Exh.16 and the promissory note produced at Exh.17. Both the aforesaid documents were duly signed by the respondent accused. Thus, sufficient material has been placed for consideration before the trial Court about acknowledgment of total amount of Rs.11,59,000/- by the respondent accused. While referring to the averments made in the complaint, the learned advocate had further submitted that the complainant had fairly accepted the fact about the part payment received towards such outstanding amount i.e. Rs.50,000/- was received on 18.07.2018 followed by Rs.2 lakhs on 19.07.2018 from the respondent accused and thus, the cheque in dispute was issued for outstanding amount of Rs.9,09,000/-. It was further submitted that in the complaint it has been stated that the cheque in dispute was issued on 1.12.2018 against the aforesaid outstanding dues by the respondent -accused who had in fact approached his house at Laxmanpura. Thus, according to the learned advocate, the issuance of cheque and cheque being issued towards the outstanding dues has been established before the trial Court. Apart from the aforesaid fact, the factum of dishonour of cheque has also been established on record by bringing on record relevant documents, more particularly, the presentation of the cheque and the return memo issued by the Bank on 15.02.2019 on the ground of insufficient funds. It was further submitted that the statutory legal notice was issued which has duly been served upon the respondent accused. Inspite of the sufficient material being brought on record, according to the learned advocate, the learned Magistrate committed error by recording acquittal of the respondent -accused for the offence alleged under Section 138 of the Act. 9.1. Learned advocate has further submitted that the signature on the disputed cheque has not been disputed by the respondent accused. No case of misuse of cheque has been raised by the respondent accused. Though the legal notice has been duly served, the respondent – accused has failed to respond to such notice. In such circumstances, the learned trial Court ought not to have permitted the respondent to raise defence disputing the amount dues. No case of misuse of cheque has been raised by the respondent accused. Though the legal notice has been duly served, the respondent – accused has failed to respond to such notice. In such circumstances, the learned trial Court ought not to have permitted the respondent to raise defence disputing the amount dues. The attention of this Court was invited to the findings and the reasons assigned by the learned Magistrate, more particularly, in light of the cross examination of the complainant and the deposition of the respondent-accused, whereby, the learned Magistrate merely on presumption by comparing the signature of the respondent -accused on the disputed documents produced at Exhs. 16 & 17 i.e. the vouchers and the promissory note has recorded the findings that the signature appearing on the aforesaid documents are forged and are therefore documents are concocted. According to learned advocate, the learned Magistrate ought to have referred the matter to verify the aforesaid fact to the Forensic Science Laboratory or Handwriting Expert before arriving at such conclusion. On the aspect of defence being raised disputing the amount dues at the later stage of trial, the learned advocate has placed reliance upon the decision of the Hon’ble Supreme Court in the case of P. Rasiya and Abdul Nazer and Another reported in 2022 Lawsuit (SC) 1026 to contend that in absence of any reply being given by the respondent -accused to the legal notice, learned Magistrate ought not to have permitted such defence being raised for the first time at the later stage of the trial. It was further submitted that having done so, the learned Magistrate ought to have given sufficient opportunity to the respondent - accused to tender explanation in order to prove his case beyond reasonable doubt having once accepted the defence raised by the respondent- accused. By referring to the findings and reasons assigned by the learned Magistrate, the learned advocate submitted that except for the fact that application seeking examination of the witness i.e. son of the complainant and three vital documents relied upon by the complainant at Exh.53 having been dismissed, no further reasons have been assigned by the learned Magistrate. By referring to the findings and reasons assigned by the learned Magistrate, the learned advocate submitted that except for the fact that application seeking examination of the witness i.e. son of the complainant and three vital documents relied upon by the complainant at Exh.53 having been dismissed, no further reasons have been assigned by the learned Magistrate. Learned advocate has, therefore, urged this Court to provide one more opportunity to the complainant to prove his case beyond reasonable doubt and has urged this Court to remand the matter back to the trial Court for reconsideration in light of the application at Exh.53 and the documents produced therein. 9.2. Mr. Shah, learned advocate for the applicant in support of his submission has relied upon the following decisions: (I). T.P Murugan (dead) Through Legal Representatives vs. Bojan reported in (2018)8 SCC 469 . (II). Basalingappa vs. Mudibasappa reported in 2019 Lawsuit (SC) 1037. (III). APS Forex Services Pvt. Ltd vs. Shakti International Fashion Linkers & Ors reported in 2020 Lawsuit (SC) 165. (IV). Rohitbhai Jivanbhai Patel vs. State of Gujarat and Another reported in AIR 2019 SC 1876 . (V). Palakom Abdul Rahiman vs. Station House Officer Badiadka Police Station, Kerala and Another reported in AIR 2019 SC 1891 . (VI). Triyambak S Hdgde vs. Sripad reported in 2021(4) GLH 178 . 10. On the other hand, Mr. Dipen Sankhesara, learned advocate has vehemently objected to the aforesaid request of the learned advocate for the appellant. At the outset, Mr. Sankhesara, learned advocate submitted that no error has been committed by the learned Magistrate in not believing the case put forward by the complainant. He has strongly disputed the execution of the vouchers and promissory note produced at Exhs. 16 & 17. The attention of this Court was invited to the documentary evidence being brought on record by the respondent accused. Reliance was placed on the agreement produced at Exh.34 dated 14.05.2017 which is executed by the respondent in presence of the witness in favour of the present complainant. By referring to the aforesaid documents, it was submitted that the respondent accused and the brother of the respondent had borrowed an amount of Rs.7 lakhs from the complainant for the purpose of repayment of agricultural loan availed by their father and both the brothers have individually accepted their liability to the extent of Rs.3,50,000/-. By referring to the aforesaid documents, it was submitted that the respondent accused and the brother of the respondent had borrowed an amount of Rs.7 lakhs from the complainant for the purpose of repayment of agricultural loan availed by their father and both the brothers have individually accepted their liability to the extent of Rs.3,50,000/-. It was further submitted that at the stage of execution of such document, two blank cheques signed by the respondent- accused were handed over to the complainant as security towards the liability of amount of Rs.3,50,000/- qua respondent accused. Learned advocate has further referred to the cross examination of the complainant to contend that the question was put to the complainant with regard to aforesaid transaction wherein the complainant had admitted that separate document of Rs.50 stamp paper has been executed on 10.05.2017 acknowledging the fact of payment of Rs.7 lakhs, though late on he has denied that the liability of the respondent accused was to the extent of Rs.3,50,000/-. While objecting to the prayer made by the learned advocate for the complainant for remand on the ground of production of additional document has relied upon that application produced at Exh.53 under Section 311 of the Code. Learned advocate Mr. Sankhesara invited attention of the Court to the fact that the deposition of the accused had been placed on record on 17.12.2021, along with the said affidavit of examination in chief the list of documents intended to be relied upon by the respondent accused was also produced at Exh.31. Specific defence was raised by the respondent accused about further payment of an amount of Rs.1 lakhs on 15.01.2018 by cheque bearing no.030002 and an amount of Rs.50,000/- by cash on 18.07.2018 towards the interest. Apart from the aforesaid amount, the admitted amount of Rs.2 lakhs was paid by cheque bearing no.030006 on 19.07.2018 and Rs.50,000/- on 25.07.2018 by cheque bearing no.030007 in favour of the complainant, whereas, the application seeking production of further document under Section 311 of the Code with a prayer to examine the witness was produced at fag end of the trial at Exh.53 on 23.11.2022. According to the learned advocate, the original complainant derived the knowledge about the specific defence raised by the respondent -accused about repayment of the additional amount much prior in point of time. According to the learned advocate, the original complainant derived the knowledge about the specific defence raised by the respondent -accused about repayment of the additional amount much prior in point of time. As the details of the bank statement brought on record reflecting the aforesaid entries of repayment dated 15.1.2018 were already brought on record. The attention of this Court was invited to the order passed by the learned Magistrate below such application, wherein, the trial Court after considering the submission of the learned advocates for the respective parties refused to entertain such application at belated stage, more particularly, when the aforesaid documents were not referred at the first instance in the complaint nor being stated in the deposition before the trial Court by the complainant. Learned advocate, therefore, submitted that no error can be found with the approach of the trial Court noticing the facts disputed in cross examination as against the documentary evidence in the nature of bank statement as well as evidence adduced by the respondent accused to arrive at such conclusion that the complainant had failed to prove his case beyond the reasonable doubt, thereby, recording order of acquittal. He, therefore, urged this Court not to grant leave to appeal and to confirm the order of acquittal. 11. Having heard the learned advocates for the respective parties at length and on overall appreciation of the evidence on record, the perusal of the Record and Proceedings, more particularly, the application produced at Exh.53 under Section 311 of the Code, the issue which arises for consideration is whether the learned Magistrate has committed any error in refusing the production of documents and examination of witness as prayed for by the complainant at Exh.53 under Section 311 of the Code. Whether the learned Magistrate committed an error in facts and circumstances of the case by recording acquittal. 12. Before examining the merits of the case, it would be appropriate to look into the relevant provisions i.e. Section 311 of the Code. Section 311 reads thus: “311. Power to summon material witness, or examine person present. Whether the learned Magistrate committed an error in facts and circumstances of the case by recording acquittal. 12. Before examining the merits of the case, it would be appropriate to look into the relevant provisions i.e. Section 311 of the Code. Section 311 reads thus: “311. Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court 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. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. If a Magistrate of the first class is satisfied that, for the purposes of any investitgation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.” 12.1. The plain reading of Section indicate that the scope and object of the provision is to enable the Court to determine the truth and to render a just decision i.e. after discovering all relevant facts and obtaining the proper proof of such fact, to arrive at a just decision of a case. The Hon’ble Supreme Court in the case of Zahir Habibullah Sheikh and Another vs. State of Gujarat & others reported in (2006) 3 SCC 374 has noted that 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 for the prosecution and not that of the accused. The Court further noticed that the section is a general section which applies to all nature of proceedings, enquiries and trials under the Code, it empowers the Magistrate to issue summons to any of the witnesses at any stage of such proceedings, trial or enquiry. The Court took notice of the significant expression appearing in Section 311 of the Code which is "at any stage of inquiry or trial or other proceeding under this Code". 12.2. In light of the aforesaid remarkable observations of the Hon’ble Supreme Court, considering the reasons assigned by the learned Magistrate, the production of the documents or summoning of the witnesses at the instance of any parties, in my view, cannot be precluded even at the fag end of stage of the trial. To the aforesaid extent, learned Magistrate observing that such application could not have been entertained at the stage when the respondent accused had tendered pursis for closure of the evidence, is erroneous. However, as observed by the Hon’ble Supreme Court in the aforesaid decision, it is equally required to be borne in mind that though the aforesaid section confers a very wide power on the Court on summoning the witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. This brings me to the second limb of submission made by the learned advocate for the respondent – accused as regards the documents intended to be relied upon, having not been forming part of the averments of the complaint or the deposition of the complainant. In such circumstances and the law laid down, the fundamental thing which is expected from the Court is to examine as to whether it is necessary in the facts and circumstances of the particular case before it in order to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts to enable to arrive at just decision, the production of such documents or summoning of the witnesses would be required. It is also to be kept in mind that an application under Section 311 of the Code must not be allowed only to fill up a lacuna in the case of prosecution or of 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 opposite party. 13. Keeping in mind the aforesaid aspect, on close examination of the documents intended to be brought on record by the original complainant, it gives an impression that the complainant intended to project the case in a different manner more than in the nature of explanation which seriously prejudices the defence put forwarded by the respondent accused. The aforesaid fact bears a great significance in light of the scheme of the Act, which otherwise permits the respondent – accused to raise probable defence and shifts the burden upon the original complainant to prove his case beyond reasonable doubt. 14. As against the defence raised by the respondent accused about the repayment of the amount of Rs.1 lakh on 15.01.2018 by cash, the original complainant by production of the intended documents which include vouchers alleged to have been signed by the respondent- accused, has made an attempt to project the case that the cheque bearing no.030002 dated 15.01.2018 for an amount of Rs.1 lakh was handed over towards the cost incurred for the construction of well and the installation of the submarine water pump on the land belonging to the original accused. The close reading of the agreement in writing alleged to have been executed by the respondent accused on 30.11.2018 gives an impression of same being created by the original complainant in order to explain the relevant entries relied upon by the respondent accused about repayment of further amount. At one stage, there is a reference to the fact about no original promissory note or other documents were lying with the original complainant in respect of transaction alleged. The aforesaid recital goes contrary to the fact that the original promissory note dated 30.05.2017 alleged to have been executed by the respondent accused has been placed on record for consideration by the complainant before the trial Court at Exh.17. 15. The aforesaid recital goes contrary to the fact that the original promissory note dated 30.05.2017 alleged to have been executed by the respondent accused has been placed on record for consideration by the complainant before the trial Court at Exh.17. 15. Having noticed the aforesaid facts, this Court is of the view that remanding the matter back to the learned trial Court to permit the original complainant to lead such document would be unfair or disadvantageous to the defence raised by the accused. Even permitting the examination of the witness may result in filling of lacuna. Hence, I am of the opinion that no case is made out for remand of the matter to the trial Court. 16. Having held so, this brings me to the impugned judgment and order of acquittal. Learned advocate for the original complainant has relied upon the decision of the Hon’ble Supreme Court in the case of Basslingappa (supra) to contend that in absence of any response to the statutory notice the trial Court ought not to have permitted the respondent -accused to raise defence. In fact, in the aforesaid decision, the Hon’ble Supreme Court while reversing the judgment of the High Court who had otherwise held that in absence of any reply to the notice denying the execution of cheque or a legal liability had convicted the accused. The Hon’ble Supreme observed that the High Court was unduly influenced by the fact that the accused did not reply to the notice denying the execution of cheque or a legal liability. On merits, the Court noted that the accused had raised a probable defence and the findings of the trial Court that the complainant had failed to prove his financial capacity were based on evidence led by the defence. 17. In the facts of the case, though no reply was given to the legal notice duly served upon the respondent accused, strong defence has been raised by producing the cogent material in the form of documentary evidence which include the agreement executed between the parties at Exh.34, application given by the respondent accused instructing stop payment at Exhs. 42 and 43, statement of account of respondent accused at Exhs. 44, 49, 50 as well as copy of the vouchers at Exhs.46 & 48 the respondent accused has entered into witness box and has been cross examined. 42 and 43, statement of account of respondent accused at Exhs. 44, 49, 50 as well as copy of the vouchers at Exhs.46 & 48 the respondent accused has entered into witness box and has been cross examined. No contradictions have been brought on record by the complainant in the cross examination of the respondent accused. In fact, the close appreciation of the cross examination of the complainant goes to suggest that the complainant has failed to bring on record the case as intended to put forward in the application produced at Exh.53. On the other hand, the repayment of the further amount of Rs.1 lakh on 15.1.2018 and Rs.50,000/- towards interest in cash on 18.07.2018 has been corroborated by the documents brought on record by the respondent accused i.e. the bank statement produced on record at Exh.35 as well as from the evidence of the witness who is the Bank Officer of the concerned Bank at Exh.41. In my opinion, the respondent accused has been successful in bringing on record the contradictions to the case put forward by the original complainant. 18. Insofar as the contention raised by the learned advocate with regard to the error committed by the learned Magistrate about the execution of the vouchers at Exh. 16 and promissory note produced at Exh.17 is concerned, the learned Magistrate has relied upon the legal position as laid down by the Hon’ble Supreme Court in the case of Ajay Kumar Parmar vs. State of Rajasthan reported in AIR 2013 SC 619. The Hon’ble Supreme Court after taking into consideration the various judgments on the issue opined that there is no legal bar which prevents the Court from comparing signatures or handwriting by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observations to prove the said handwritings to be same or different, as the case may be but at the same time, the Court also cautioned the Courts below to not to become an expert in this regard and to refrain from playing the role of expert on the ground that the opinion of the Court may also not be conclusive. The Court further observed that as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. The Court further observed that as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, were there is an opinion whether of an expert, or of any witness, the Court may apply its own observation by comparing the signatures or handwriting for providing a decisive weight or influence to its decision. 19. In light of the aforesaid legal position, no error can be found with the approach of the learned Magistrate in arriving at its own finding with regard to the disputed signature on the aforesaid documents, more particularly, when the aforesaid documents were challenged by the respondent accused in the cross examination of the original complainant. In absence of any application being moved by the complainant or any cogent material being brought on record to prove such document by moving an application for referring the document for handwriting expert opinion, the Court below noticing the controversy involved has undertaken task to compare the signatures which was within the purview of Section 73 of the Evidence Act. In absence of any contrary facts or material being placed for consideration before this Court in the present appeal, this Court does not find any error with the aforesaid approach of the learned Magistrate. Even otherwise for the reasons assigned, the major contradictions have been brought on record by the respondent accused as against the case put forward by the complainant, no case is made out for grant of leave to appeal. Hence, present application seeking leave to appeal is hereby refused. 20. For the reasons stated and having declined the leave to appeal, the appeal consequently fails. Registry is directed to transmit back the Record and Proceedings of the case to the concerned trial Court forthwith.