The essentiality of evidence for a just decision takes precedence over the stage of the application under Section 311 Cr.P.C.

JUDGMENT

Jasjit Singh Bedi, J. - The prayer in the present petition under Section 482 Cr.P.C. is for setting aside the order dated 08.10.2018 (Annexure P-5) passed by the Judicial Magistrate, 1st Class, Yamuna Nagar at Jagadhari in Criminal Complaint No.312 dated 16.05.2013 registered under Sections 406, 420, 120-B IPC titled as Kamlesh Versus Pardeep Singh & another whereby the application filed by the complainant/respondent No.2 under Section 311 Cr.P.C. has been allowed.

2. The brief facts of the case are that the respondent No.2/complainant filed a complaint in the Court of Chief Judicial Magistrate, Yamuna Nagar at Jagadhari with the allegations that she had purchased a plot at Shiv Colony Mauja Chandpur, Yamuna Nagar, Tehsil Jagadhari District Yamuna Nagar as per sale deed No.3990 dated 27.09.1988. Pursuant to the purchase of plot additions and alterations were made in the construction on the said plot. Taking advantage of the faith that she and her husband placed upon that the petitioners/accused, they fraudulently got executed a General Power of Attorney dated 17.08.2010 in favour of Pardeep Singh (petitioner No.1/accused No.1) and on the basis of the said General Power of Attorney, Pardeep Singh (accused/petitioner No.1) executed a sale deed in favour of petitioner No.2/accused No.2-Reena Devi his wife on 14.03.2012. Based on these allegations, the aforementioned criminal complaint came to be filed in which the petitioners (accused) came to be summoned to face trial by the said Court.

3. During the course of proceedings and after the closing of the evidence in the complaint case, the petitioner No.1-Pardeep Singh appeared as a witness in a civil suit arising out of the same transaction as DW-5 and in the said case he is said to have made certain admissions which were stated to be relevant for the first decision of the present complaint.

4. Due to this reason, an application for permission to produce additional evidence was moved to bring on record the testimony of petitioner No.1-Pardeep Kumar recorded in the said civil suit titled Kamlesh Versus Pardeep & another with the averments that the said statement was relevant for the just decision of the present complaint case. The accused/petitioners filed a reply to the petition contending that the application had been filed just to delay proceeding and to fill up a lacuna which the applicant (respondent No.2-complainant) was not entitled to do since the arguments in the case had already been advanced and the case was at the final stages and producing the additional evidence would amount to reopening of the trial. In addition it was contended that the said statement in another case could not be read in evidence in this case since the previous statement of a witness could be relevant only if it had been put to the witness in his cross-examination which was not so in the present case.

5. On considering the rival contentions of both the parties, the Trial Court came to the conclusion that the statements sought to be produced on record in the present was germane to the controversy inasmuch as the civil proceedings and the the present criminal proceedings arose out of the same transaction of the execution of a power of attorney and subsequent sale deed. The Court also found that the admissibility of the statement of the petitioner No.1-Pardeep Singh recorded in civil proceedings would be a matter of adjudication during the trial in the present case. It was further held that as the petitioner No.1-Pardeep Singh (accused) had not been examined as a witness in the present case, there was no question of confronting him with his statement recorded in the civil case as had been contended by the petitioners/accused and even otherwise, any additional evidence sought to be produced by respondent No.2/complainant at that stage would be put to the petitioners/accused at the time of recording of their respective statement under Section 313 Cr.P.C. where they could furnish their explanation. It