The Court's decision was based on the interpretation of Section 311 Cr.P.C. and the application of the principles laid down by the Supreme Court in similar cases.

JUDGMENT :

Vivek Singh Thakur, J.

By way of present petition, invoking provisions of Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”), petitioner has assailed impugned order dated 13.1.2020, passed by Additional Chief Judicial Magistrate, Court No. 1, Sarkaghat, District Mandi, H.P., in case No. 509 of 2014, titled as Himachal Gramin Bank Vs. Deepak Jyoti, whereby application preferred by the petitioner under Section 311 Cr.P.C. for recalling the Bank Manager as a witness alongwith entire record of dishonor of cheque in reference, entire record of loan account of accused/petitioner and for producing certified copies of documents of recovery suit preferred by the Bank against the petitioner/accused in evidence, has been dismissed.

2. Petitioner in present case had obtained loan amounting to 9,73,250/- for purchasing a passenger bus on 26.8.2010. There was default in repayment of loan. For repayment of loan amount, petitioner/accused issued a cheque of 3,50,000/-, dated 16.9.2013 in favour of Himachal Gramin Bank. The said cheque was dishonored on 17.9.2013 due to “insufficient funds” in the account of accused/petitioner, which lead to filing of complaint by the Bank, after complying provisions of Negotiable Instruments Act, against the petitioner/accused.

3. CW-1 Ramesh Kumar (Manager) was examined as complainant’s witness on 6.9.2017 and in his cross-examination he had stated that he had not brought the record of loan account of petitioner/accused, but there was no request made on behalf of respondent/accrued at that time to defer the examination of the said witness for cross-examining him on production of record of loan account of the petitioner/accused. The witness was examined in the year 2017, whereas application under Section 311 Cr.P.C. was filed in November, 2018.

4. In the application, Bank Manager has been proposed to be summoned alongwith record of dishonor of cheque in reference and entire loan record of loan account of accused/petitioner.

5. So far as record of dishonor of cheque is concerned, relevant documents related thereto including cheque have already been placed on record in evidence by the complainant and in case there is some document related thereto which is required to be considered for adjudication of the case and has not been placed on record by the complainant, it would be fatal for the complainant-Bank itself and there is no averments or material on record to show that in absence of any record related to dishonor of cheque, the petitioner/accused is going to be adversely affected. As a matter of fact, vague prayer has been made to produce the record of dishonor of chque, without disclosing that what will be that record, other than the record produced by the complainant in present complaint. Loan account of the petitioner/accused has also been proposed to be summoned. It is not in dispute that accused/petitioner had availed loan from the Bank and signing and issuance of cheque which has been dishonored for ‘insufficient funds’ in the account of petitioner/accused, is also not in dispute.

6. For adjudication of complaint under Section 138 of the Negotiable Instruments Act (for short the ‘NI Act’), production of loan account of the petitioner/accused is not necessary, as nothing has been stated in the application that how and in what manner the said record is going to facilitate the Court to arrive at just conclusion of the case. Certified copies of documents of recovery suit have been proposed to be lead in evidence on the ground that complainant has initiated two proceedings against the petitioner/accused to recover the same loan amount. Firstly, no documents have been placed on record with the application which are proposed to be led in evidence. Secondly, it is more than settled that complainant has right to file complaint under Section 138 of the NI Act on dishonor of cheque and simultaneously complainant can also file suit for recovery of amount. Therefore, in present case filing of re