IMPORTANT POINT
As and when Court feels that accused was trying to delay or protract the trial in such situation application under Section 91 or under Section 311 Cr.P.C. could be dismissed.

S.C. Vyas, J.—The Order passed by Additional Sessions Judge. Bhanpura. Mandsaur in Cr. R. No. 96/2006 on dated 11.5.2006 whereby Order dated 8.4.2006 passed by Judicial Magistrate First Class. Bhanpura in Criminal Complaint No. 13/2005 was confirmed. is under challenged in this petition presented by the petitioner under Section 482 of Criminal Procedure Code, requesting to invoke the extraordinary jurisdiction of this Court and to quash both these Orders.

2. The present petitioner is facing prosecution under Section 138 of Negotiable Instrument Act before learned J.M.F.C., Bhanpura. on the allegation that two cheques of Rs. 50.000 and Rs. 75.000 respectively issued by the present petitioner herein were dishonoured by the Bank due to insufficiency of funds and the amount was not paid by him despite demand. During trial prosecution witnesses were examined thereafter petitioner herein entered in his defence and when the matter was at the stage of advancing final arguments then an application under Section 91 of Cr.P.C. was filed, wherein a request was made, summon F.I.R. lodged by the complainant (respondent herein) regarding theft of his G.P.F. amount as well as record of the G.P.F. account of the complainant be called. Another application under Section 311, Cr.P.C. was filed for recalling complainant. These two applications Annexures P-3 and P-4 were dismissed by the Trial Court and the criminal revision filed by the petitioner herein before Additional Sessions Judge also failed, therefore, he preferred present petition.

3. After having heard learned Counsel for both the parties and having gone through the impugned Orders passed by J.M.F.C. as well as Additional Sessions Judge in Cr. R. No. 96/2006 on dated 11.5.2006, this Court is of the opinion that this petition has got no force and is liable to be dismissed.

4. Learned Counsel for the petitioner Shri Manish Manana very vehemently argued that the complainant Sanat Kumar (PW 2) has deposed before Trial Court that he had withdrawn certain amount from his G.P.F. account and was available with him. This was the reply, which has come during cross-examination of the complainant.

5. Learned Counsel for the petitioner submitted that later on the same complainant had lodged a report with the police that the amount, which was withdrawn by him from his G.P.F. amount was stolen from his house, and, therefore, the documents regarding withdrawal from G.P.F. amount and first information report regarding theft of that account become relevant in this case and Trial Court committed an error in disallowing the application filed under Section 91, Cr.P.C.

6. Learned Counsel for the petitioner heavily relied on the Judgment of this Court passed in the case of S.K. Singhal v. State of Madhya Pradesh.

7. Per contra, learned Counsel for the respondent Smt. Madhulika Nahar submitted that the petitioner herein was having full opportunity to adduce any evidence during the stage of defence evidence and when the case has passed that stage and the matter was fixed for final arguments then at that stage applications were deliberately moved to create hurdles in the progress of the trial and to protract the same by causing delay.

8. Copies of the proceedings, which have been filed by the petitioner himself in this petition and the paragraph No. 7 of the impugned Order passed by J.M.F.C. shows that the case was fixed for recording defence evidence from 21.10.2005 till 17.3.2006 continuously. During that stage no prayer for calling any document or for recalling complainant for further cross-examination was made by the complainant, when the stage of recording evidence had passed, and the matter was fixed for final arguments, then abruptly all of a sudden on 22.3.2006, at the stage of addressing the Court finally petitioner moved applications under Section 91, Cr.P.C. and Section 311 of the Cr.P.C. respectively.

9. Under Section 139 of the Negotiable Instrument Act a presumption is drawn against the dr