IMPORTANT POINT
The court emphasized the essentiality of evidence for a just decision and the duty of the court to ensure a fair trial.

JUDGMENT :

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent No.1-State and learned advocate Mr. Piyush Trivedi for learned advocate Mr. Pratik Barot waives service of notice of rule for and on behalf of the respondent No.2-original complainant.

2. By this writ application under Article 226/227 of the Constitution of India, the writ applicant has prayed for the following reliefs:

“(A) Your Lordship be pleased to admit and allow this petition and order passed by the learned 2nd Additional Chief Judicial Magistrate, Mahesana dated 13.04.2015 rejecting the application below exhibit-43 in Criminal Case No.1198 of 2011 and order passed in Revision Application No.37 of 2015 dated 30.10.2015 passed by the Additional Sessions Judge, Mahesana, be quashed and set aside.

(B) Your Lordship be pleased to allow the application below exhibit-43 and the complainant may be recalled for the cross-examination in Criminal Case No.1198 of 2011 at the earliest before the learned Additional CJM, Mahesana.

(C) Your Lordship be pleased to stay the impugned orders and also the further proceedings of Criminal Case No.1198 of 2011 during the pendency of this petition and then till the final disposal of this petition.

(D ) Your Lordship be pleased to grant any other or further relief in the interest of justice and equity considering the facts and circumstances of the case.”

3. The facts, giving rise to the present application, may be summarized as under;

3.1 The writ applicant herein is the original accused and the respondent No.2 herein is the original complainant in the main proceedings. Therefore, for the sake of convenience, they shall hereinafter be referred to as per their litigative status before the trial court.

3.2 The original complainant filed a complaint under Section 138 of the Negotiable Instruments Act (henceforth ‘N.I. Act’) against the original accused levelling allegations that as the original accused was working in the G.E.B., he often used to come to the office of the original complainant where he was doing the business of share market and thus they both came into contact and became friends.

3.3 Thereafter, under the guise of such friendship, the original accuse borrowed an amount of Rs.2,65,000/- from the original complainant with a promise to return back the said amount at the earliest.

3.4 Thereafter, as the original complainant was in need of money, he demanded the said borrowed amount from the original accused whereupon the original accused issued a cheque of Rs.2,65,000/- of the State Bank of India, Bharuch Branch, dated 11.01.2011 being Cheque No.483992 in favour of the original complainant duly signed by him against the amount owed by him to the original complainant.

3.5 Thereafter, the original complainant negotiated the cheque in question through its banker Axis Bank, Mahesana Branch on 11.01.2011 which was dishonoured with an endorsement of ‘Funds Insufficient’.

3.6 The original complainant, thereafter, asked the original accused to repay his outstanding dues, however, the original complainant did not pay any heed to the same and till today, the said amount has not been returned back by the original accused.

3.7 The original complainant, thereafter, issued a statutory notice under Section 138 of the N.I. Act dated 25.01.2011 calling upon the original accused to make good the amount mentioned in the cheque. The said notice was sent by two different modes, i.e, R.P.A.D and U.P.C., however, notice issued through R.P.A.D remained unserved whereas the notice issued through U.P.C. was duly served. Despite the same, neither any reply has been filed by the original accused nor the outstanding dues of the original complainant has been paid by the original accused even after the completion of the notice period of 15 days. The original complainant, thereafter, proceeded to file a complaint in the Court of the learned Chief Judicial Magistrate at Mahesana which was ultimately registered as