Upasana Jhina vs Amit Thakur

Rakesh Kainthla, J

The present petition is directed against the order dated 10.09.2025 passed by learned Chief Judicial Magistrate, Shimla (learned Trial Court) under Section 311 of Cr.P.C vide which the application filed by the petitioner for placing on record the add tional evidence was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

Briefly stated, the facts giving rise to the present petition are that a complaint against the accused is pending before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short, ‘NI Act’). The accused filed an application under Section 311 of Cr.P.C. for summoning the witness from HDFC Bank, Sanjauli Branch. Learned Trial Court held that the accused had availed effective opportunities for leading defence evidence on 16.04.2025 and 07.05.2025, and when no evidence was produced, the evidence was closed by the Court. The application was filed to circumvent the order passed by the C urt. Therefore, the application was dismissed vide o der dated 10.09.2025.

Being aggrieved by the order passed by the learned Trial Court, the present petition has been filed asserting that the matter was listed for leading defence evidence on 16.04.2025 and 07.05.2025. No evidence was produced, and the opportunity to lead evidence was closed on 07.05.2025. The matter was listed on 28.05.2025, and the accused could not appear before the learned Trial Court. Learned Trial Court issued Non-Bailable Warrants of arrest. The accused was produced before the learned Trial Court on 28.07.2025, and she was granted bail. She changed her counsel on the same day and filed a fresh Power of Attorney. The bank statement of the accused from HDFC Bank, Sanjauli Branch, was not placed on record. The bank statement was necessary to clarify the financial transaction between the complainant and the accused and would assist the learned Trial Court in the adjudication of the dispute. The documents could not be placed earlier because the accused was busy taking care of her 82-year- old father, who had suffered a heart attack in the year 2024. He was paralysed in the year 2025 and was bedridden. The documents were necessary for the proper adjudication of the dispute. Hence, it was prayed that the present petiti n be allowed and the order passed by the learned Trial Cou be set aside.

Mr Rohan Tomar, learned counsel for the petitioner/accused, submitted that the learned Trial Court erred in dismissing the application. The documents could not be produced earlier because the petitioner/accused was taking care of her bedridden father. Learned Trial Court had not considered this aspect. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

Learned Trial Court dismissed the application on the ground that the evidence of the petitioner/accused was closed by the order of the Court, and it was impermissible to review it by taking recourse to Section 311 of Cr.PC. This was contrary to the judgment of Shyam Verma v. State of H.P., 2012 SCC OnLine HP 1569, wherein it was observed:

“10. The learned counsel for the petitioner has submitted that the evidence of the prosecution was closed on 1.7.2010 and that the order attained finality. The order dated 28.12.2010 amounts to a review of the order dated 1.7.2010, which is not permissible. This contention has no force. Section 311 of the Code authorises the Court to summon any person as a witness at any stage f the trial. This power is available to the Court even after the closure of the evidence of the prosecution…”

Therefore, the lea ned Trial Court could not have dismissed the application on the ground that the evidence was closed by the C urt and the application was an attempt to circumvent the order passed by it.

Para 6 of the application mentions that it transpired after applying for the copies of the case file that the bank statement of the accused from HDFC Bank, Sanjuali, was not placed on record. The bank statements were needed to clarify the financial transactions between the parties. It was not mentioned how the financial transactions between the parties would have assisted the Court in determining whether the offence punishable under Section 138 of the NI Act was committed or not. The relevance of the documents was not mentioned before the learned Trial Court or this Court. Since only relevant evidence can be admitted, therefore, the application for leading additional evidence could not have been allowed.

The jurisdiction under Section 528 of BNSS (corresponding to Section 482 of Cr.P.C.) is extraordinary and is to be exercised in rare cases to prevent the abuse of the process of the Court, to give effect to any order under the Code or to secure the ends of justice. When the relevance of the evidence sought to be adduced is not apparent, the ju isdiction under Section 528 of BNSS cannot be exercised.

Consequently, the present petition fails, and it is dismissed.

T e observations made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.