The main legal point established in the judgment is the necessity for fair trial and the opportunity for the petitioner to adduce defense evidence under Section 311 of the Code of Criminal Procedure.

JUDGMENT :

SURESH KUMAR KAIT, J.

Crl. M.A. 36778-79/2019

1. Allowed, subject to all just exceptions.

2. Applications are disposed of.

Crl.M.C.4853/2019 & Crl.M.A. 36780/2019

3. Notice issued.

4. Learned counsel accepts notice on behalf of the respondent and with the consent of the counsel for the parties, the present petition is taken up for final disposal.

5. Vide the present petition, the petitioner seeks direction thereby to set aside the impugned order dated 05.08.2019 passed by the learned MM, West District, Tis Hazari Courts, Delhi in Complaint Case No.7026 of 2017.

6. Brief facts of the case are that the respondent herein has filed a complaint under section 138 of the Negotiable Instruments Act, 1881 against the petitioner on the basis of cheque, bearing No.956138 drawn on Punjab National Bank, Chandni Chowk for an amount of Rs. 5,00,000/- dated 01.09.2017. The cheque in question was issued by the partnership concern M/s. H.R. Sons and the said cheque was signed by Late Sh. Kulvinder Singh.

7. As per the case of the respondent, the said cheque was handed over to the respondent and, on presentation, the same was dishonoured for the reason "Account Closed". Learned Trial Court summoned the petitioner vide order dated 07.11.2017 for the next date of hearing, i.e.,12.03.2018. Thereafter, on 12.03.2018, the petitioner was admitted to bail and at joint request, the matter was referred to the mediation cell and fixed for further proceedings on 03.07.2018. On the said date, the petitioner showed a copy of Deed of Dissolution of the Partnership concern M/s. H.R. Sons dated 10.04.2006 and the matter was fixed for hearing on maintainability on 18.09.2018. However, after framing of notice on 03.07.2018, the learned Trial Court has fixed the case for maintainability on 18.09.2018 and it was observed that in view of defence taken by the petitioner, the complainant's evidence was dispensed with and the case was adjourned for 11.12.2018 for the purpose of recording the defence evidence. But unfortunately in the month of October 2018, the aunt (Taiji) of the petitioner, Smt. Bhupinder Kaur who resided with and was dependent upon the petitioner, was undergoing treatment for breast cancer. The said aunt had one son and two daughters. The son is a special child and both the daughters are married. Thus, it was not possible for them to visit Smt. Bhupinder Kaur so often. However, on 03.02.2019, she expired. As the petitioner was recovering from the same, he could not contact his counsel and prepare his defence. But on 07.05.2019, right of the petitioner to lead the defence evidence stood closed and the matter was listed for final arguments on 01.07.2019.

8. Further case of the petitioner is that he moved an application under Section 311 of the Code of Criminal Procedure for calling the complainant for cross-examination and vide order dated 05.08.2019, the Learned Trial Court dismissed the same.

9. Being aggrieved, the petitioner filed a criminal revision petition bearing no.304 of 2019 on 11.09.2019 before the Sessions Court challenging the order dated 05.08.2019, however, the same was dismissed as withdrawn as not maintainable vide order dated 21.09.2019.

10. Counsel further submits that the respondent/complainant also filed a civil suit before Learned ADJ, Central District being CS(OS) No. 6102 of 2018 titled as "Ranjana Gawri vs. Sandeep Singh", seeking recovery of Rs. 26,56,500/- which is pending adjudication.

11. It is further submitted that the respondent has taken completely different stands in his plaint and his complaint. While in the plaint, he has stated that the cheque in question was handed over by the father of the Petitioner, whereas, in the complaint filed under section 138 of NI Act, he said that the said cheque was handed over by the Petitioner. Thus, the respondent has committed forgery.

12. Also submitted that father of the petitioner expired on 08.07.2014. Clause (c) of Section 42 of the Indian Partnership Act, 1932 deals with the diss