Point of Law : It would have not caused prejudice to complainant as complainant would have got a chance to cross-examine witnesses produced by accused.

ORDER :

By way of instant petition, petitioner has assailed the order dated 6.5.2022, passed by learned Judicial Magistrate, 1st Class, Shillai, District Sirmour, H.P. in case No. 69 of 2021, titled as Amit Sharma vs. Babu Ram.

2. Petitioner herein is the accused before learned trial Court in complaint filed against him by the respondent herein under Section 138 of the Negotiable Instruments Act. After closure of his defence evidence, petitioner herein/accused filed an application under Section 311 Cr.P.C. with a prayer to examine two witnesses named Bhagat Ram and Madan Singh. It was submitted in the application that the accused had already raised a defence that the complainant/respondent herein was engaged in business of ‘Chit Fund’ and had procured security cheques from various persons including the accused/petitioner herein. As per the petitioner herein/accused, the witnesses sought to be examined by him were also the victims of respondent herein/complainant and would prove the factum of having handed over blank security cheques to the complainant. It was also submitted that the examination of such witnesses was necessary for the purposes of probalizing the defence of accused. Petitioner herein/accused also maintained that he could not produce the witnesses earlier, as they were afraid of complainant.

3. The complainant/respondent herein contested the prayer of the accused by filing reply. The allegation of complainant engaged in business of ‘Chit Fund’ was specifically denied. It was submitted that the persons proposed to be examined as witnesses by accused had reasons to depose against the complainant as they were also accused in other cases, filed against them before learned Judicial Magistrate, 1st Class, Paonta Sahib and learned Judicial Magistrate, 1st Class, Shillai.

4. Learned trial Court dismissed the application of the accused/petitioner herein vide impugned order on the ground that the accused had already availed opportunity to lead defence evidence and had closed the same. The act of accused in filing the application at belated stage has been termed to be an abuse of law. Another reason for which the application has been rejected is that accused was trying to fill up lacuna and hence, could not avail aid of Section 311 Cr.P.C.

5. I have heard learned counsel for the parties and have also gone through the record carefully.

6. Perusal of impugned order reveals that the grounds on which the application of the accused under Section 311 Cr.P.C. has been dismissed are firstly that the application was filed belatedly after closure of defence evidence and secondly, it amounted to fill up lacuna and covering up the incompetence of accused.

7. Section 311 Cr.P.C. vests the Court with jurisdiction to examine any person as a witness, if his evidence appears to it to be essential to the just decision of the case. The stage of inquiry or trial being immaterial. The Court is only to assess whether the examination of a witness or his evidence is essential to the just decision of the case.

8. Reverting to the facts of the case, accused had alleged that his proposed witnesses were to depose in respect of the practice adopted by complainant to obtain blank signed cheques from his costumers during the course of his business of ‘Chit Fund’. Learned trial Court instead of assessing the necessity of examination of proposed witnesses of accused, proceeded to dismiss the application on such grounds, which are extraneous to the requirement of Section 311 Cr.P.C.

9. In reply to application under Section 311 Cr.P.C., the complainant had specifically alleged that the proposed witnesses of accused were themselves accused in another cases, which fact was sufficient to imply that the complainant had filed the complaint against such persons also. In any case, learned trial Court could have ascertained the details of the cases in which the proposed witnesses of accused were stated to be involved from the complainant.

10. Thus, there was prima-facie subst