The essentiality of evidence is the touchstone for allowing an application under Section 311 Cr.P.C., and even if allowing the application amounts to filling up a lacuna, it should not be an absolute bar to allowing the application under Section 311 Cr.P.C.

JUDGMENT

Jasjit Singh Bedi, J. (Oral) - The present petition under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 18.01.2019 (Annexure P-3) (colly) passed by the learned Judicial Magistrate, 1st Class, Malerkotla in a complaint under Section 138 of the Negotiable Instruments Act No.259 of 2018 instituted on 27.03.2018 titled as 'Gaurav Kumar Versus Avtar Singh' (Annexure P-1), whereby the application of the petitioner- complainant for summoning a witness under Section 311 Cr.P.C. has been dismissed.

2. The brief facts of the case are that the petitioner- complainant filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent/accused alleging that the respondent had borrowed a sum of Rs.3,90,000/- from the petitioner- complainant on 09.02.2018 and had issued a post-dated cheque No.892667 dated 22.02.2018 in favour of the petitioner-complainant. When the petitioner presented the said cheque for encashment, it was dishonoured leading to the filing of the complaint and the subsequent summoning order.

3. Thereafter, the petitioner-complainant appeared and examined himself as CW-1 and during the course of his cross- examination on a question being asked, the petitioner-complainant stated that the respondent-accused had borrowed the said amount in the presence of one Pankaj Goyal. Thereafter, an application under Section 311 Cr.P.C. for seeking permission to examine Pankaj Goyal son of Inderjit Goyal was moved. The said application came to be dismissed vide order dated 18.01.2019 (Annexure P-3) wherein, it was held that merely because the name of Pankaj Jain had appeared in the cross- examination, the invocation of Section 311 Cr.P.C. was not warranted. It is this order which is impugned before this Court.

4. The learned counsel for the petitioner-complainant contends that the necessity arose for moving the application under Section 311 Cr.P.C. only on account of the fact that during the course of cross- examination, it transpired that the accused/respondent had borrowed the amount from the petitioner-complainant and issued the cheque in question to the petitioner-complainant in the presence of Pankaj Goyal. He thus, contends that the petitioner-complainant has not delayed the proceedings in any manner and allowing of the application would not amount to filling up of a lacuna as the said witness would be subjected to cross-examination.

5. On the other hand, the learned counsel for the respondent- accused contends that the petitioner-complainant had availed many opportunities to lead his evidence but had failed to produce Pankaj Goel as a witness and the attempt was only to fill up the lacuna in the case of the petitioner-complainant and therefore, the petition was liable to be dismissed.

6. I have heard the learned counsel for the parties at length.

7. Admittedly, the list of witnesses attached to the complaint itself mentions that the complainant could examine any other witness, if required. In the present case, the necessity arose to move the application under Section 311 Cr.P.C. only because the name of Pankaj Goel figured in the cross-examination of the petitioner-complainant as the witness in whose presence the transaction took place. The question of filling up of a lacuna would be irrelevant as what is required to be seen is the test of the essentiality of the evidence. Meaning thereby that if the evidence was essential for the just adjudication of the case in terms of Section 311 Cr.P.C., then any witness could be examined, even though the said examination/cross-examination/re-examination would amount to the filling up of a lacuna. The Hon'ble Supreme Court in the case of Varsha Garg Versus The State of Madhya Pradesh & others, 2022(4) R.C.R. (Criminal) 328, held as under:-

'29. The first part of the statutory provision which uses the expression 'may' postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provisio