The admissibility of a document is decided by the Court at the time of final hearing and not at the time when the document is produced, exhibited, and marked.

JUDGMENT :

The petitioner has been made accused in Complaint Case No. 576 of 2010. He is aggrieved of the order dated 11th November 2014 by which the application filed by the complainant for producing a copy of the legal notice has been allowed by the learned Magistrate.

2. Inspite of the order dated 15th February 2021, the learned counsels appearing for the parties are not able to apprise the Court regarding stage of the trial.

3. By an order dated 6th August 2015, lower Court records of Complaint Case No. 576 of 2010 were called for.

4. Mr. Sumant Kumar Ghatak, the learned counsel for the petitioner, submits that a copy of the legal notice was never brought on record by the complainant and even at the time of cognizance this document was not on record and therefore the complainant could not have been permitted to produce the said document in the middle of the trial.

5. Mr. Om Prakash Singh, the learned counsel for OP No. 2 and Mrs. Priya Shrestha, the learned Spl.PP support the impugned order dated 11th November 2014.

6. In Complaint Case No. 821 of 2010, the complainant has averred that the cheques issued by the accused were returned unpaid with the remarks “Account Closed” and an intimation in this regard was received by him on 4th April 2010. In paragraph no. 5 of Complaint Case No. 821 of 2010, the complainant has averred that he sent a legal notice through his lawyer to the accused on 19th April 2010.

7. Production and examination of witnesses in a trial in a civil suit are regulated under Order XVII and Order XVIII of the Code of Civil Procedure. Rule 2 to Order XVIII provides that on the date fixed for the hearing the party having the right to begin shall state his case and produce his evidence in support thereof. Rule 4 provides that examination-in-chief of a witness shall be on affidavit with advance copy of the same to be supplied to the other party. Proviso to Rule 4 which is relevant for the present purposes provides that where the documents are filed and parties rely upon the documents, the proof and admissibility of such documents shall be subject to the orders of the Court. In a sessions case, the Public Prosecutor and in a summons case, the complainant begin the case and produce the witnesses.

8. In the order dated 11th November 2014, the learned trial Judge has observed as under:

“Having heard and perused the case record it appears that it is a case under section 138 of N.I. Act and the document sought to be marked exhibit are not filed afresh by the complainant rather it is already on record. It is settled view of law that all documents brought by any party should be considered. It further appears that document sought to be exhibited are necessary for the just decision of this case however it would not be out of context to say that complainant has caused delay and negligence as he has already been examined. Hence in the view of above discussed facts and circumstances I do hereby allow the application of the complainant at cost of Rs. 200/- and he is directed to produce the witness on next date 8/1/15.”

9. In the opinion of this Court, till the time a witness is put to cross-examination he can alter or modify his examination-in-chief by filing another affidavit. Even after the cross-examination, a party can file an application for recall of the witness for further cross-examination provided new facts have come on record. This also needs to be indicated that admissibility of a document is decided by the Court at the time of final hearing and not at the time when the document is produced, exhibited and marked.

10. This Court therefore does not find any error in the order dated 11th November 2014 and, accordingly, Criminal Revision No. 135 of 2015 is dismissed.

11. Let a copy of this order be transmitted to the Court concerned through “Fax”.

12. Let the lower Court records be sent to the Court concerned forthwith.