The court affirmed the power of the trial court to examine additional witnesses during trial, citing Section 254(1) and Section 311 of the Code, and found that the addition of the witness was justified as it supported the claim made in the petition of complaint and did not introduce new facts.

JUDGMENT

Jay Sengupta, J. - This is an application challenging an order dated 28th May, 2018 passed by the learned Additional Sessions Judge, 16th Court, Alipore, South 24 Parganas in Criminal Motion No. 67 of 2017 thereby affirming an order dated 9th December, 2016 passed by the learned Judicial Magistrate, 5th Court, Alipore, South 24 Parganas in connection with Case No. C-1281/2006 under Section 138 of the Negotiable Instruments Act.

2. Mr. Phiroze Edulji, learned counsel appearing for the petitioner submits as follows. The petitioner is the accused in a case under Section 138 of the Negotiable Instruments Act. The complainant/opposite party did not cite P.W.2, namely Partha Majumdar, as a witness in the petition of complaint. Yet, subsequently, he was presented as a witness and deposed as P.W.2. His inclusion as witness has opposed by the accused/petitioner. The learned trial court, inter alia, held that from a conjoint reading of Section 204(2) and Section 254(1), it is abundantly clear that the complainant had every right to cite a witness not included in the initial list. Or else, it would render Section 254(1) useless. Learned Magistrate relied on decisions reported in [ Sunil Vassudev Pednekar v. Bicholmurban CO-operative Bank Ltd., (2006) CriLJ 3114 (3117) (Bom.)] and [ Ali Jan v. Amir Khan, (1957) AIR Calcutta 332] . The revisional court, on the other hand, referred to Section 311 of the Code and arrived at a finding that additional witness can also be summoned during a trial. However, the learned revisional court did not cite any reason as to why Section 311 of the Code should be invoked in this particular case. No sufficient reasons were recorded by either of the learned courts below to justify the addition of P.W.2 as a witness. Mr. Angshuman Chakraborty, learned counsel appearing for the opposite party/complainant submits as follows. The orders passed by the learned trial court and the learned revisional court are well reasoned. Additional witness can also be examined during trial either in terms of Section 254 or Section 311 of the Code. Presently, the cross-examination of P.W.2 has already commenced.

3. I have heard the submissions of the learned counsels representing parties and have perused the revision petition.

4. The learned trial court and the learned revisional court have elaborately considered the question of law at hand and cited cogent reasons to arrive at their respective conclusions.

5. As it would be evident from the decisions relied on, Section 204(2) of the Code cannot act as a fetter on the examination of the additional witness in terms of Section 254(1) of the Code. Moreover, Section 311 of the Code gives an ample power to learned trial court to examine additional witnesses during trial.

6. As regards the relevance of P.W.2 in the present case, it had quite clearly been stated by the complainant in its petition of complaint that the money in question was taken as an interest free loan. The said additional witness only supports such claim of the petitioner during trial. He does not seem to introduce a new fact that would amount filling up a lacuna.

7. In view of the above, I do not find any illegality in the impugned order.

8. Accordingly, the revisional application is dismissed.

9. There shall, however, be no order as to costs.

10. Urgent photostat certified copy of this order may be supplied to the parties expeditiously, if applied for.