JUDGMENT :

Heard Mr. A. M. Bora, learned Senior counsel assisted by Mr. B. Bhagawati, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent No.1 and Mr. A. K. Bhuyan, learned counsel for the private respondent No.2.

2. This is an application filed under Section 482 read with Section 401 of the Code of Criminal Procedure Code, 1973 challenging the impugned Order dated 04.02.2023 passed by the learned Judicial Magistrate, First Class, Kamrup (M) in C.R. Case No.3974/2019 instituted under Section 138 of the Negotiable Instruments Act, 1881 for dishonor of 8(eight) numbers of cheques before the learned Court of Chief Judicial Magistrate, Kamrup (M) on 04.10.2019.

3. The present petition is filed by the accused petitioner challenging the legality and validity of the impugned Order dated 04.02.2023 passed by the Court of learned JMFC, Kamrup (M) in C.R. Case No.3974/2019 instituted under Section 138 of N.I. Act, allowing the prayer of the respondent No.2/complainant to file additional evidence on affidavit when the case is pending at the state of cross-examination of the complainant as prosecution witness No.1/P.W.1 and accepting some doubtful electronic evidence tendered by the respondent No.2/complainant through the said additional evidence on affidavit which were not in the complaint petition.

4. It is alleged that the accused petitioner had received the demand notice on 24.08.2019, but, despite receipt of the said demand notice, he did not make payment of the cheques and as such, the respondent No.2/complainant had instituted a complaint case against the accused petitioner. On receipt of the aforesaid complaint petition, the learned CJM, Kamrup(M) had registered the same as C. R. Case No.3974/2019 and the said Court had transferred the same before the Court of learned JMFC, Kamrup(M) for disposal. Upon perusal of the complaint petition and the initial deposition of the complainant, the learned JMFC had taken cognizance of the offence under Section 138 of N.I Act and issued process to the accused petition. After receipt of the summons, the accused petitioner appeared before the learned Trial Court and on prayer being made by him, he was allowed to go on bail and at present he is facing the trial.

5. Further, it has been stated that the respondent No.2/complainant had filed the instant complaint in October, 2019. He also filed his evidence on affidavit as Prosecution Witness No.1 in November 2019. Thereafter, the learned JMFC had furnished the copies of the complaint petition, evidence on affidavit and relied upon the documents to the accused petitioner. On 17.03.2022, the learned Magistrate had explained the offence to the petitioner to which he pleaded not guilty and claimed to be tried. Then, the learned Magistrate had posted the case on 22.04.2022 for cross-examination of the P.W.-1. Since then, the case has been posted on various dates as reflected in the order sheets. As the complaint case was pending at the stage of cross-examination of the P.W.-1 since 22.04.2022, and at the very moment the respondent No.2/complainant had filed a petition being petition No.2617 dated 02.09.2022 with a prayer to allow him to file further evidence in the said complaint case stating that inspite of due diligence in filing the evidence on affidavit, some documents left out, which are material and important in the said proceeding. It has also been stated that the respondent No.2/complainant had also filed some documents proposed to be exhibited in this case along with the petition dated 02.09.2022. The copies of the petition, additional evidence on affidavit and some documents were served upon the accused petitioner on 02.09.2022. After receipt of the copies, the accused petitioner had submitted before the trial Court that he will file written objection to the said petition on the next date and thereafter, the case was posted for objection/hearing on 06.01.2023. Accordingly vide o