Shiv Kumar Verma vs Chaman Lal

K.S. Kumaran, J.—Though the respondent was represented by a counsel and was directed to file a reply no reply was filed till 24.11.1995 as directed. On 24.11.95 none was present on behalf of the respondent. Therefore, the case was adjourned to 15.12.95 for arguments and for filling the reply, if any, in the meanwhile. On 12.1.1996, when the case was taken up, there was no representation for the respondent even on that day and no reply appears to have been filed. Any how this petition was adjourned to 9.2.96 and the office was directed to inform the counsel for the respondent. The office note now says that the respondent has been informed. Despite all this, there is no representation by the counsel for the respondent even today and there is no reply on the file.

I have heard the learned counsel for the petitioner. He contends/that the petitioner herein who had filled the complaint under S.138 of the Negotiable Instruments Act, read with Section 420, IPC, before the Judicial Magistrate 1st Class Jalandhar also filed an application for examination of Lakhbir Singh Dhami, Advocate, as a witness on the complainant''s side for exhibiting the reply notice alleged to have been sent by the said advocate on behalf of the respondent, but this request was opposed by the respondent and not granted by the learned Judicial Magistrate by his order dated 26.4.1994. The petitioner herein had filed appeal (Cr. Appeal No. 10 of 1994) before the Addl. Sessions Judge, Jalandhar which was also dismissed on the ground, among others, that no appeal was competent. The petitioner has, therefore, approached this Court under S.482, Code of Cr. Procedure.

The contention of the petitioner is that the respondent had sent a reply through his counsel by name Lakhbir Singh Dhammi of New Courts Jalandhar and the reply notice is a relevant piece of evidence and, therefore, the petitioner should be permitted to examine the said advocate and exhibit this reply notice as a document in his favour. This was opposed by the respondent on the ground that the petitioner who is the complainant before the learned Magistrate had alleged in his complaint itself that to the notice sent by him, the respondent did not respond nor did he make the payment, and that shows that no reply was sent by the respondent. Another ground urged by the respondent in support of his contention was that the name of the said advocate did not figure in the list of witnesses mentioned by the complainant. These two aspects have been taken note of by the learned Magistrate in dismissing the application filed by the complainant. But, I am of the view that the first objection taken by the respondent goes to the weight of the evidence rather than its admissibility into the evidence. It will be open to the respondent to contend that this reply was not sent at his instance, If really that were so. But, it does not mean that this document is wholly inadmissible in evidence. If the complainant is able to Examine this advocate and prove this document, it has to be admitted into evidence. Whether this evidence is contrary to the allegations made in the complaint or not is not to be considered at this stage to shut out this piece of evidence at the threshold itself. This matter will have to be gone into while appreciating the evidence led by both the sides.

So far as the other objections that the name of the advocate is not mentioned in the List of Witnesses annexed to the complaint is. also no ground for not permitting the complainant to examine this witness. In the circumstances, I find that the learned magistrate was not justified in rejecting the request made by the complainant/petitioner.

The result is that this petition is allowed and, consequently, the petition filed by the complainant before the learned magistrate for examination of the advocate named Lakhbir Singh Dhammi and for letting into evidence the reply/notice alleged to have been sent by him will stand allowed. This petition is disposed off accordingly.