The legal principle established is that an application for setting aside an order should not result in the pre-judgment of the defense without affording an opportunity to establish it.

( 1 ) THROUGH this petition under Articles 226 and 227 of the Constitution of India read with Section 482 cr. P. C, petitioner seeks to challenge the order dated 30th September, 2004 passed by the learned Additional sessions Judge, Delhi thereby dismissing a revision petition filed by the petitioner against the order of metropolitan Magistrate dated 3rd August, 2004. By the said order dated 3rd August, 2004, the learned Magistrate has disposed of two applications, one under Section 227 cr. P. C and other under Section 340 Cr. P. C.

( 2 ) THIS Court having gone through the impugned orders dated 3rd August, 2004 and 30th September, 2004 and having regard to the totality of the facts and circumstances of the case is of the considered opinion that so far as the dismissal of the application under section 227 Cr. P. C is concerned, no fault can be found with the said order of the learned Metropolitan magistrate or the order of the learned Additional sessions Judge dismissing the revision petition to that extent. However, having regard to the facts and circumstances of the case and pleas put forth by the parties on the merit of the case, this Court is of the considered opinion that the application under Section 340 cr. P. C. moved by the petitioner ought to have awaited the decision of the main case because precisely what was pleaded in the application under section 340 Cr. P. C is the defence put forth by the petitioner on which the petitioner is yet to lead his defence evidence. Disposal of the application under Section 340 Cr. P. C at that stage of the proceedings means that the defence of the petitioner has been pre-judged without hearing of the petitioner. That does not seem to be a permissible legal course. Therefore, the order of the learned Trial Court dated 3rd August, 2004 so far as it has dismissed the application under Section 340 Cr. PC is liable to be set aside as it has resulted into miscarriage of justice. The petitioner must be given an opportunity to establish his defence.

( 3 ) IN the result, the petition is partly allowed and the impugned order passed by the learned Trial Court dated 3rd August, 2004 and that of the learned Additional sessions Judge, Delhi dated 30th September, 2004 so far as it had dismissed the application under Section 340 cr. P. C is hereby set aside. The said application will be taken on record and shall be decided in accordance with law either at the time of conclusion of the trial of the case under Section 138 of the Negotiable Instrument act or soon thereafter.

( 4 ) PETITION stands disposed of.

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