Sandeep Sharma, J.

Being aggrieved with the order dated 6.1.2017 passed by learned Judicial Magistrate 1st Class (Junior Division), Mandi in case No.84-1/2011, whereby application having been filed by the petitioner-accused under Section 311 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’) came to be dismissed, petitioner-accused has approached this Court by way of instant petition filed under Section 482 Cr.P.C. praying therein for setting aside the aforesaid impugned order.

2. Briefly stated facts, as emerged from the record, are that the respondent-complainant filed a complaint under Section 138 of the Negotiable Instrument Act, in the Court of learned trial Court against the present petitioner-accused, alleging therein that the petitioner-accused in order to discharge his liability on account of debt towards the respondent-complainant, issued a cheque bearing No.942861, dated 15.11.2010, amounting to Rs.3,80,000/- drawn on Punjab National Bank, Bharmour (Chamba) Branch in favour of respondent-complainant. Since cheque referred above came to be dishonoured on its presentation, respondent-complainant served statutory demand notice on the petitioner calling upon him to make the payment good within stipulated time. Since petitioner-accused failed to make payment good, respondent-complainant was constrained to file complaint under Section 138 of the Negotiable Instrument Act.

3. Learned trial Court taking note of preliminary evidence adduced on record by the complainant, put notice of accusation on the petitioner under Section 138 of the Negotiable Instrument Act, which he pleaded not guilty and claimed trial. It also emerged from the record that respondent-complainant in support of his complaint himself stepped into witness box as a sole witness and evidence of respondent-complainant was closed on 20.9.2014, whereafter petitioner-accused led his evidence and the same was also closed on 13.7.2016. Subsequently, on 11.8.2016 petitioner filed an application under Section 311 Cr.P.C. praying therein for summoning and examining bank official from the Kangra Central Cooperative Bank Limited Manali Branch, as a witness.

4. Perusal of application preferred under Section 311 Cr.P.C. suggests that since respondent-complainant during his cross-examination stated that cheque amount was given to the petitioner-accused after withdrawing the same from his saving bank account in Kangra Central Cooperative Bank Limited Manali Branch, petitioner-accused by way of aforesaid application made a prayer that he may be allowed to examine official of Kangra Central Cooperative Bank as a witness.

5. On the other hand, respondent-complainant opposed aforesaid prayer of petitioner-accused and sought dismissal of application on the ground that the application has been filed at a belated stage solely with a view to fill up the lacuna.

6. Learned trial Court vide order dated 6.1.2017 dismissed the aforesaid application filed by the accused on the ground that allowing of application at this stage would amount to filling up of lacuna, if any, which has crept in the defence set up by the accused. Learned Court below, on the basis of record, also concluded in the impugned order that complainant has himself stepped into witness box as a sole witness to support his complaint and it has come in his cross-examination that he had withdrawn the money given to accused from his account in Kangra Central Cooperative Bank, Chamba and as such onus was rather upon complainant to lead evidence to establish that he had withdrawn the money from his account in Kangra Central Cooperative Bank, Manali Branch.

7. Mr. Malay Kaushal, learned counsel representing the petitioner, while inviting attention of this Court to Section 311 Cr.P.C., vehemently contended that impugned order passed by learned trial Court is not sustainable as the same is not in consonance with the provisions contained in Section 311 Cr.P.C. wherein it has been provided as under:-