The main legal point established in the judgment is that the power under Section 311 Cr.P.C. should be exercised with circumspection and only for the just decision of the case. The court emphasized the need to ensure that the evidence to be tendered would be germane to the issue involved and that an opportunity of rebuttal is given to the other party.

Sandeep Sharma, J.

By way of instant petition filed under Section 482 of the Code of Criminal Procedure, a prayer has been made on behalf of the accused-petitioner (hereinafter referred to as the ‘accused’) for quashing and setting aside the order dated 17.12.2016 (Annexure P-4) passed by Judicial Magistrate Ist Class, Manali in Complaint No.357-1 of 2012, whereby application having been filed by the accused under Section 311 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) has been dismissed.

2. Briefly stated facts, as emerged from the record, are that the respondent-complainant (hereinafter referred to as the ‘complainant’) instituted a complaint against the accused under Section 138 of the Negotiable Instrument Act (for short the ‘Act’) in the Court of learned Judicial Magistrate Ist Class, Manali, stating therein that the accused allegedly approached complainant on 14.10.2009 and made a request to advance a sum of Rs.19,05,000/- for expansion of business. Complainant advanced a sum of Rs.19,05,000/- to the accused, who in lieu of the same issued three cheques in favour of the complainant towards discharge of his liability. However, fact remains that aforesaid cheques were dishonoured, as a result of which, complainant was compelled to initiate proceedings under Section 138 of the Act.

3. Learned trial Court, taking note of preliminary evidence adduced on record by the complainant, put notice of accusation to the accused under Section 138 of the Act, which he pleaded not guilty and claimed trial. It also emerged from the record that complainant examined himself as well as other witnesses in support of the complaint. Thereafter statement of accused was also recorded under Section 313 Cr.P.C. on 16.6.2015. Accused, after closure of defence evidence, moved an application under Section 311 read with Section 91 Cr.P.C. seeking permission of learned trial Court to examine Assessing Officer, Income Tax Commissioner, Mandi Range District Mandi, H.P., (for short AO, ITC, Mandi) as a witness on the premise that the office of Additional Commissioner of Income Tax Mandi Range, District Mandi, issued a show cause notice on 10.5.2016, thereby imposing penalty under Section 271-E of Income Tax Act, 1961 upon the accused. The accused, with a view to prove his defence in the complaint instituted by complainant, intended to prove the aforesaid notice issued by AO, ITC, Mandi by examining him as a witness. Accused, by way of application, stated before the Court below that he wants to examine AO, ITC, Mandi, as a witness as he has sent legal notice to the accused regarding the payment of loan amounting to Rs.9,75,000/- in the relevant Assessment Year 2011-2012, which is quite necessary for the just adjudication of the above titled case as the complainant has submitted before the Commissioner of Income Tax that he has received the aforesaid amount from the accused.

4. Apart from above, accused submitted before the Court below that he has received notice during the pendency of the case, as such, he wants to tender the legal notice on record and to examine the aforesaid witness to prove the said document. Complainant, by way of filing reply to the application, opposed the aforesaid prayer of examination of AO, ITC, Mandi, stating therein that application has been filed at a belated stage in order to prolong the proceedings and, as such, the same deserves to be dismissed being not maintainable and without any merit. Complainant further stated before the Court below that proposed witness is not necessary to be produced and examined for just and final decision of the present case.

5. Learned trial Court vide order dated 17th December, 2016 dismissed the aforesaid application filed by accused on the ground that accused has already been given an opportunity to lead his evidence and as such, filing of the application, at this stage, appears to be an attempt to prolong the case. Learned Court below, after having gone through the pleadings,