The main legal point established in the judgment is that the Trial Court should allow the submission of additional affidavit of evidence when it is material for a just and proper decision of the case and does not cause prejudice to the opposing party.

Heard learned Advocate for the petitioner.

2. Admit.

3. The petitioner is the accused in Criminal Case No.240 of 2007, pending before the Judicial Magistrate First Class, Umarkhed. The petitioner had allegedly committed offence punishable under Section 138 of the Negotiable Instruments Act. Evidence of the respondent has been closed. After recording statement of the petitioner under Section 313 of Cr.P.C., the petitioner had examined himself as DW1. The petitioner had also examined Bank Officer as DW2.

4. The case of the petitioner is that he had paid Rs.1,20,000/-to the complainant/respondent. The petitioner while giving evidence as defence witness No.1 had stated before the Trial Court that the said amount was paid to the respondent by cheque. The DW-2 who is a Bank Officer had on the other hand stated that the amount was paid to the respondent by transfer slip. It is in this background that the petitioner moved the Trial Court for grant of permission to file additional affidavit of evidence. Learned Trial Court has rejected the application by order dated 19/7/2011. The petitioner filed revision before the Sessions Court, Pusad. The learned Additional Sessions Judge took the view that the order passed by the learned Magistrate was of interlocutory nature. Therefore, revision was not maintainable. It is how the petitioner is before this Court and prays for relief under Section 482 of Criminal Procedure Code.

5. The application on behalf of the petitioner was necessitated because of evidence of DW-2 that the amount was given to the respondent by transfer slip and not by cheque. It is submitted by the learned Counsel for the petitioner that the petitioner had, due to inadvertence, stated in his affidavit of examination-in-chief that the payment was made by cheque. The petitioner wanted to give additional affidavit only to clarify that the amount was given by transfer slip.

6. Since the additional evidence which is sought to be adduced before the Trial Court is material for just and proper decision of the case and does not cause any prejudice to the respondent, it was incumbent on the part of the learned Magistrate to grant the prayer. It should have been noted that the Bank Officer had given evidence on the basis of the record of the Bank. If at all any discrepancy is found, in the evidence of DW-1 and DW-2, the same can be taken note of by the learned Trial Court at the time of delivering final Judgment. It was not just and proper on the part of the learned Magistrate to reject the prayer for grant of permission to file additional affidavit of examination-in-chief. Needless to state that once the additional affidavit of examination-in-chief was permitted to be filed, the respondent also would have an opportunity to cross examine the witness and he could have placed his case before the learned Trial Magistrate in the cross examination of the petitioner.

7. For all these reasons, I pass the following order:

(i) The order passed by the learned Magistrate on 19/7/2011 in Sum. Criminal Case No. 2400 of 2007 is set aside.

(ii) The learned Magistrate is directed to allow the petitioner to submit additional affidavit of examination-in-chief.

(iii) Interim order stands vacated.

(iv) Parties to appear before the Trial Court on 15th March 2012.