Saraswati vs Rajender

MANISHA BATRA, J. (Oral)

Prayer in the present petition, filed under Section 482 Cr.P.C., is for quashing of the order dated 10.11.2021 passed by the Court of learned Judicial Magistrate First Class, Faridabad in Criminal Complaint bearing No. NACT-5949-2017, dated 27.11.2017, titled as Rajinder v. Saraswati, filed under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N. I. Act’), whereby the application filed by the respondent under Section 311 Cr.P.C. for leading additional evidence has been allowed.

Briefly stated facts are that the respondent/complainant has filed aforementioned complaint against the petitioner. The complainant had concluded his evidence and thereafter the petitioner led her defence evidence. On 03.03.2021, the petitioner closed her defence evidence after examination of DW-1 Jitender Singh. On the same date, the respondent moved an application under Section 311 Cr.P.C. seeking permission to lead additional evidence by examining five witnesses. The application was ultimately allowed by the learned trial Court vide order dated 10.11.2021. The five witnesses sought to be examined are the concerned Ahlmad from the Court of Mohd. Sageer, JMIC, Faridabad, along with the relevant record; the concerned Ahlmad from the Court of Jitender Singh, JMIC, Rewari, along with the relevant record; the concerned Ahlmad from the Court of Ms. Meenakshi Yadav, JMIC, Kosli, Rewari, along with the record of the complaint titled Bhagat Singh versus Saraswati; and the concerned clerks of HDFC Bank, NIT Faridabad, in respect of the relevant account and cheques. Aggrieved from the same, the petitioner/accused has filed this petition. Vide order dated 07.01.2022, passed by this Court, the operation of the impugned order has been stayed, which is still continuing.

Learned counsel for the petitioner has argued that the application under Section 311 Cr.P.C. was filed only after the petitioner had closed her defence evidence and, therefore, the same amounted to an attempt to fill up the lacuna in the case of the respondent. It is argued that the witnesses sought to be examined were already within the knowledge of the respondent and no satisfactory reason has been given as to why they could not be examined earlier. It is further argued that the learned trial Court allowed the application without properly considering the objections raised by the petitioner and without recording any cogent reason. Therefore, it is argued that permitting additional evidence at this stage would cause prejudice to the petitioner and would result in reopening of the entire case. Hence, it is urged that the petition deserves to be allowed and the impugned order is liable to be set aside.

On the other hand, learned counsel for the respondent has opposed the petition and has argued that the impugned order has been passed by the learned trial Court in the interest of justice and in accordance with law. It is argued that the power under Section 311 Cr.P.C. is intended to enable the Court to bring on record evidence which is necessary for a just and proper decision of the case. Learned counsel has further argued that the witnesses sought to be examined are relevant for proper adjudication of the complaint and that their examination would not cause any prejudice to the petitioner, as she would have full opportunity to cross-examine them. Hence, it is urged that the petition is liable to be dismissed.

This Court has heard the rival submissions of learned counsel for the parties.

The respondent sought to examine five witnesses in additional evidence. The learned trial Court, after considering the application and the reply filed by the petitioner, allowed the same vide order dated 10.11.2021. The petitioner mainly objects to the timing of the application and submits that the respondent should not be permitted to fill up any lacuna after closure of the defence evidence. At the same time, the witnesses sought to be examined are mainly official witnesses and the records sought to be produced by them relate to the proceedings and documents which may have bearing on the controversy involved in the complaint. The petitioner would have full opportunity to cross-examine the witnesses and to raise all permissible objections regarding the relevancy and admissibility of the evidence. In the circumstances, rather than entering into a detailed examination of the merits of the impugned order at this stage, the interest of justice would be served by permitting the respondent to avail two effective opportunities for leading the additional evidence already permitted by the learned trial Court. Accordingly, the present petition is disposed of with a direction that the respondent shall be granted two effective opportunities to examine the witnesses permitted to be examined under the order dated 10.11.2021. The said two opportunities shall be availed within a period of two months from today. The petitioner shall be entitled to cross-examine the witnesses on the same date, subject to the convenience of the learned trial Court.

The learned trial Court shall make an endeavour to conclude the additional evidence within the aforesaid period. No unnecessary adjournment shall be granted. In case the respondent fails to avail the opportunities within the stipulated period, no further opportunity shall ordinarily be granted on this account.

It is clarified that nothing contained in this order shall be taken as an expression of opinion on the merits of the complaint or the defence of the petitioner.