IMPORTANT POINT
Fair trial includes grant of fair and proper opportunities to person concerned and same must be ensured.

Sandeep Sharma, J.—Being aggrieved and dissatisfied with order dated 18.12.2017, passed by the learned Chief Judicial Magistrate, Kullu Himachal Pradesh in Case No. 149-1/17, whereby an application under Section 311 Cr.P.C., having been preferred by the respondent-complainant, seeking therein permission to lead additional evidence came to be allowed, petitioner has approached this Court in the instant proceedings, praying therein to set aside impugned order as referred to herein above.

2. Necessary facts without unnecessary details as emerge from the record are that the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “Act”) against the petitioner-accused (hereinafter referred to as, “accused”), alleging therein that the accused vide agreement dated 11.8.2010 agreed to sell land to the complainant and one Mala Sood collectively for a consideration of Rs.18,50,000/- and out of total sale consideration, Rs.18,00,000/- was received by the accused from the complainant and Mala Sood on 11.8.2010 as earnest money, whereas remaining amount of Rs.50,000/- was to be paid at the time of registration of sale deed. However, fact remains that accused expressed his inability to get the sale deed executed in terms of agreement to sell executed between the parties on account of some family dispute and as such, with a view to discharge his liability, he issued cheque bearing No. 695029 dated 28.9.2011, for a sum of Rs.18,00,000/- drawn on State Bank of India, Bhunter Branch, from his account No. 11038722568. Since cheque referred to above was dishonoured, complaint under Section 138 of the Act (Annexure P-1) came to be filed in the court of learned Chief Judicial Magistrate, Kullu.

3. After conclusion of evidence, complainant preferred an application under Section 311 Cr.P.C., seeking therein permission to lead additional evidence to prove statement of accounts. Complainant averred in the application that due to bona fide omission, he failed to prove statement of accounts of alleged payment made to the accused. He further stated that since accused denied the payments made by him through cheques of four different Banks, it is necessary for him to prove these transactions for the just decision of the case. Respondent prayed by way of application referred to herein above that he may be permitted to produce and prove the statement of accounts by examining Bank officials.

4. Application referred to herein above came to be resisted by the accused on the ground that statement of accounts is not necessary for the just decision of the case and present application has been filed just to delay the proceedings. Accused further submitted before the court below that the application filed at a belated stage can not be entertained as it would amount to filling up of lacuna.

5. Learned court below taking note of the pleadings adduced on record by respective parties allowed the application vide order dated 18.12.2017, and permitted the complainant to prove documents by examining Bank officials. In the aforesaid background, accused has approached this Court in the instant proceedings.

6. Mr. T.S. Chauhan, learned counsel representing the accused, while referring to the impugned order, strenuously argued that there is no application of mind by the court below, while passing impugned order, as such, same deserves to be quashed and set aside. He further contended that power under Section 311 cannot be exercised by the court to permit the applicant to fill up lacuna. While referring to the application having been filed by the complainant, Mr. Chauhan, contended that explanation rendered in the application for examining Bank officials, is not at all plausible because documents intended to be placed on record, were very much in possession of the complainant but he purposely failed to place the same on record as such, permission at this stage, to prove same by examining bank officials w