1. Respondent no.2 instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as NI Act) against the petitioner in respect of two dishonoured cheques dated 25th February, 2007 for Rs. 5 lakhs and Rs. 6 lakhs respectively. At the stage of complainant’s evidence, respondent no.2 moved an application dated 19th October, 2012 before the learned Metropolitan Magistrate under Section 311 Code of Criminal procedure, 1973 (hereinafter referred as Cr.P.C.) for permission to examine K.S. Kohli as a witness on the ground that the respondent had given friendly loan of Rs.11 lakhs to the petitioner in the presence of K.S. Kohli at his office. It was further submitted that K.S. Kohli was a material witness but his name was inadvertently left out in the list of witnesses.

2. Vide order dated 14th December, 2012, the learned Metropolitan Magistrate allowed the application and permitted respondent no.2 to examine K.S. Kohli. The reasons given by the learned Metropolitan Magistrate are as under:

“5. In the present case, the complaint has been filed U/s 138 NI Act. In the complaint, the complainant has stated that he had given to the accused a friendly loan of Rs.11 lacs in cash in the office of M/s Grandley parties of Sh. K.S. Kohli. This fact is mentioned in the legal notice sent to the accused as well as in the affidavit of CW1. Though, the name of Mr. K.S. Kohli is not mentioned in the list of witnesses. However, the name is very well mentioned in the legal notice, the complaint, and affidavit of cross examination of CW1. However, it is not specifically mentioned in any of the document that he was a witness to the above said loan. But it has to be kept in mind that the alleged loan was given in the office of Mr. K.S. Kohli. Therefore, I am of the considered opinion that his examination is necessary for just decision of the case.

6. This is not the stage where it can be presumed as to what would be statement of the witness in the witness box. Moreover, the accused shall have right to cross examine the witness. Hence, I am of the considered opinion that no prejudice shall be caused to the accused if the witness is examined.”

(Emphasis supplied)

3. The petitioner challenged the aforesaid order in revision before the Sessions Court on various grounds inter alia that K.S. Kohli was not a witness to the transaction; his name was not mentioned in the list of witnesses; K.S. Kohli was not mentioned in pre-summoning evidence of respondent no.2 dated 13th April, 2007 as well as the notice of demand dated 12th March, 2007 and respondent no.2 wants to fill up the lacunae.

4. The learned Sessions Court dismissed the revision petition vide order dated 22nd July, 2013. The reasons given by the learned Sessions Judge are as under:

“Firstly, it is an admitted fact that the name of witness K.S. Kohli which the complainant wanted to summon under Section 311 Cr.P.C. has been mentioned repeatedly by the complainant. Hence, K.S. Kohli is not a surprised name to be summoned on behalf of complainant. It may be that at the time of filing of complaint, the complainant felt that mentioning the name of K.S. Kohli as witness might not be relevant but as the case progresses, complainant might have felt him to be relevant and accordingly, filed application under Section 311 Cr.P.C.

Secondly, impugned order dated 14.12.2012 passed by the Ld. MM appears to be reasonable and to meet the end of justice.

Thirdly, Section 311 Cr.P.C. empowers the Criminal Court at any stage, to summon any person as witness, however, condition for same, is that exercise of this power should be judicious. On the face of it, the order is appear to be reasonable, judicious and to meet the end of justice.

Fourthly, even if initially the name of witness was not mentioned but later on that person has been summoned, the accused has every chance to cross examine said person / witness so as to verify his truthfulness. Endeavor of every Court i