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2025 DIGILAW 971 (HP)

Prithvi Raj v. Tajinder Singh

2025-05-09

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Petitioner-Prithvi Raj has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘ BNSS ’), against the order dated 18.10.2024, passed by the Court of learned Judicial Magistrate First Class, Court No.2, Paonta Sahib, District Sirmaur, H.P. (hereinafter referred to as the ‘trial Court’), in case, bearing CrMA No.1022/2024, filed in Criminal Complaint No.406/2022, titled as ‘Tajinder Singh Vs. Prithvi Raj’, whereby, the application, under Section 311 of the Code of Criminal Procedure (hereinafter referred to as the ‘CrPC’), for producing additional evidence by the petitioner has been ordered to be dismissed. 2. For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 3. Brief facts, leading to the filing of the present petition, as per the documents, annexed with the petition, may be summed up, as under:- 3.1. Complainant-Tajinder Singh had filed a complaint, under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘NI Act’), against accused-Prithvi Raj. In the said complaint, after securing the presence of accused-Prithvi Raj, notice of accusation was put to him and subsequently, the complainant was ordered to adduce evidence. Consequently, complainant has led his evidence. Thereafter, the entire incriminating evidence was put to the accused, his statement, recorded under Section 313 of CrPC, and then, the opportunity was given to the accused to lead his defence evidence. 3.2. Thereafter, the application, under Section 311 of CrPC, was moved by the accused. Copy of the said application has also been annexed with the present petition. 3.3. By way of the said application, filed under Section 311 of CrPC, indulgence of the learned trial Court has been sought to permit the accused to summon concerned Clerk from Union Bank of India, Branch Paonta Sahib, District Sirmaur, H.P., along with bank account statement of the wife of accused, namely Smt. Sunita Devi, to prove the payment of Rs.30,000/- from her account to the account of complainant on 10.07.2024 and to examine Smt. Sunita Devi as a defence witness. 3.4. The said application had been moved on the ground that the complainant is a money lender, who used to lend money, on interest. 3.4. The said application had been moved on the ground that the complainant is a money lender, who used to lend money, on interest. The accused, as per the application, borrowed a sum of Rs.30,000/- from the complainant, in the month of May, 2019, on interest @10% per month. To secure the repayment of the said amount, as per the direction of the complainant, accused gave two blank signed cheques, bearing No.179342 and 179343, to the complainant. 3.5. It is the case of the accused that on 10.07.2020, he had repaid the borrowed amount of Rs.30,000/-, through cheque No.33141906, issued by his wife, and he had also paid the interest in monthly cash installments. However, complainant allegedly misused one of the cheques and filed the complaint. 3.6. In order to prove the above facts, a prayer has been made that the application may be allowed by permitting the accused to summon the concerned Clerk from Union Bank of India, Branch Paonta Sahib, District Sirmaur, H.P., along with bank account statement, to prove the transaction from his wife’s account and also examine his wife, Smt. Sunita Devi, as a defence witness to prove the payment of Rs.30,000/-, made to the complainant. 3.7. The said application has been contested by the complainant by filing the reply, in which, preliminary objections have been taken that the application has been filed at a belated stage and to fill the lacunae in the case. On merits, the factual position, as mentioned in the application, has been denied and it has been prayed that the application sans merit and prayer has been made to dismiss the same. 3.8. After hearing learned counsel for the parties and after perusing the record, the learned trial Court, vide order dated 18.10.2024, has dismissed the said application. 4. Aggrieved from the said order, the present petition has been filed, on the ground that the order, passed by the learned trial Court, by virtue of which, the application, under Section 311 of CrPC, has been dismissed, is liable to be set aside, as, the learned trial Court has miserably failed to take into consideration that it is the specific case of the petitioner (accused) that the respondent (complainant) has misused the blank signed cheque, despite the fact that the amount, as borrowed, stands already returned to him. 4.1. 4.1. The findings of the learned trial Court have further been assailed on the ground that by dismissing the application, under Section 311 of CrPC, the right to fair trial, as envisaged, under Article 21 of the Constitution of India, has been denied, by the learned trial Court. 4.2. According to the petitioner, the learned trial Court has failed to consider the fact that the powers, under Section 311 of CrPC, can be exercised, at any stage of trial. 5. On the basis of above facts, learned counsel, appearing for the petitioner (accused), has prayed that the present petition may be allowed, by setting aside the order, impugned herein, and the application, under Section 311 of CrPC, moved by the accused (petitioner herein), may also be allowed, as prayed for. 6. Per contra, the prayer, so made, has been opposed by Mr. Mukul Sood, Advocate, appearing for the respondent/complainant, on the ground that sufficient opportunities have been given to the petitioner (accused) to lead his defence evidence, but, despite opportunities, given by the learned trial Court, he has not taken any steps, with regard to summoning of witnesses and as such, the application, under Section 311 of CrPC, has rightly been dismissed. Hence, a prayer has been made to dismiss the present petition. 7. Perusal of the order, impugned herein, by virtue of which, the present petition has been preferred, shows that the learned trial Court, after recording the statement of accused, under Section 313 of CrPC, has given the opportunity to lead defence evidence. In the order itself, the learned trial Court has given the details, regarding the opportunities, which have been given to the petitioner (accused). But, despite those opportunities, the petitioner (accused) could not lead defence evidence to prove/probabilize his case. 8. As per the impugned order, after recording the statement of accused, under Section 313 of CrPC, on 01.02.2024, the matter was adjourned for 17.02.2024 for producing the entire defence evidence. However, nothing was done by the petitioner (accused) and the matter was further adjourned for 02.05.2024. On that day, due to non- availability of the Presiding Officer, matter was adjourned for 07.06.2024. Thereafter, the matter was again adjourned for 29.06.2024, enabling the petitioner (accused) to produce his defence evidence, by giving the last opportunity. However, nothing was done by the petitioner (accused) and the matter was further adjourned for 02.05.2024. On that day, due to non- availability of the Presiding Officer, matter was adjourned for 07.06.2024. Thereafter, the matter was again adjourned for 29.06.2024, enabling the petitioner (accused) to produce his defence evidence, by giving the last opportunity. However, on 29.06.2024, no steps were taken to lead defence evidence and the right of the petitioner to lead defence evidence was closed by order and subsequently, the application, which, as per the impugned order, was moved on 24.07.2024, was filed. 9. Undoubtedly, the petitioner (accused) is facing the complaint, under Section 138 of NI Act, and the provisions of Section 138 of NI Act are penal in nature, whereby, the Court can pass the order of sentence. 10. In this case, although, sufficient opportunities have already been given to the petitioner (accused), but, he could not lead his defence evidence and thereafter, his evidence was ordered to be closed. However, considering the specific stand of the petitioner (accused) that the amount, borrowed by him, has allegedly been returned to the complainant, by way of the cheque, issued by his wife, this Court is of the view that the petitioner (accused) has every right to prove/probabilize his defence. 11. At the most, petitioner (accused) can be said to be negligent in pursuing the case, but, once, he approached the Court with a prayer to permit him to lead defence evidence, such opportunity cannot be denied to him, as, he has every right to prove/probabilize his defence. 12. In view of the discussions, made hereinabove and in view of the facts and circumstances of the present case, the present petition is allowed and the order dated 18.10.2024, passed by the learned trial Court, in CrMA No.1022/2024, filed in Criminal Complaint No.406/2022, titled as ‘Tajinder Singh Vs. Prithvi Raj’, is set aside and the application, under Section 311 of CrPC, moved by the petitioner (accused), before the learned trial Court, is allowed, subject to the payment of costs of Rs.10,000/-, to be paid to the complainant. 13. Prithvi Raj’, is set aside and the application, under Section 311 of CrPC, moved by the petitioner (accused), before the learned trial Court, is allowed, subject to the payment of costs of Rs.10,000/-, to be paid to the complainant. 13. Parties, through their counsel, are directed to appear, before the learned trial Court, on 18.05.2025 at 10:00 am, and after tendering the costs, which would be paid to the complainant, the petitioner is directed to take steps, within a period of seven days, to summon the official from the Union Bank of India, Paonta Sahib, District Sirmaur, H.P., and thereafter, the learned trial Court is requested to issue the process for securing the presence of the said official and in case, no steps are taken, then, the petitioner is not entitled to lead any defence evidence. 14. With these observations, the present petition is disposed of accordingly. 15. Pending miscellaneous application(s), if any, shall also stand disposed of.