IMPORTANT POINT
The court emphasized the right to a fair trial, allowing a petitioner to re-open defense for self-examination, contingent on cost payment to the complainant.

ORDER :

1. By way of this instant misc. petition under Section 482 Cr PC, the petitioner has challenged the order dated 12.04.2023 passed by learned Pilot Study Special Judicial Magistrate (NI Act Cases) Jaipur Metropolitan-I, Jaipur in Criminal Case No. 156/2018 (Ashok Kumar Chandani v. Pushpendra Sharma) whereby the application under Section 311 Cr.P.C. filed on behalf of the petitioner was dismissed.

2. Learned counsel for the petitioner submits that the petitioner is facing criminal trial for offence under Section 138 of N.I. Act in Criminal Case No. 156/2018 before the learned trial court. It is submitted that on 17.08.2022, an application was filed by the petitioner under Section 315 Cr.P.C. for examining himself as a witness in his defense. The said application was accepted on the same day and the matter was posted for 12.09.2022 for defence evidence. It is submitted that petitioner could not appear before the learned trial court because he was not well on that day and as such, the learned trial court closed the defense evidence. Thereafter, the petitioner moved an application under Section 311 Cr.P.C. for re-opening of defence and to allow him to appear in the witness box but said application was dismissed vide order dated 12.04.2023. It is submitted that petitioner is a competent witness and his examination is very essential for just decision of the case. It is submitted that if the prayer of the petitioner is not accepted, the petitioner would not be able to defend his case properly and serious prejudice would be caused to him. He, therefore, prays that in the interest of justice, the petitioner may be given one opportunity for his examination as a witness in his defense.

3. Learned State counsel opposed the prayer made by learned counsel for the petitioner.

4. Having regard to the overall facts and circumstances of the case; considering the submissions made by learned counsel for the petitioner; and also considering the fact that petitioner himself is a competent defence witness, who has already been permitted to appear as defence witness by the learned trial court vide order dated 12.09.2022, with a view to sub-serve the ends of justice, the misc. petition is partly allowed. The petitioner is hereby given one opportunity to examine himself as a defence witness before the learned trial court subject to payment of cost to the tune of Rs. 5,000/- to the complainant. Accordingly, the impugned order dated 12.04.2023 is quashed and set aside. The next date fixed in the trial court is 08.05.2024. On that date, the petitioner shall make payment of cost to the victim/complainant. It is made clear that the aforesaid liberty is limited only to the extent of examination of the petitioner himself in defence. In case, the petitioner does not make payment of cost to the victim/complainant or fails to appear and conclude his evidence in one go, as directed above, the present order shall lose its currency.