JUDGMENT :

Harpreet Singh Brar, J. (Oral)

The present petition has been filed under Section 528 BNSS, 2023 for quashing/setting aside the order dated 07.02.2025, whereby evidence of petitioner has been closed (Annexure P-4) and order dated 04.03.2025, whereby application filed by the petitioner under Section 311 Cr.P.C. has been dismissed (Annexure P-6), both passed by learned Judicial Magistrate Ist Class, Amritsar in case stemming from a complaint case filed under Section 138 of Negotiable Instruments Act, 1881.

2. Learned counsel for the petitioner inter alia contends that without there being any justifiable cause or fault on the part of the petitioner, the evidence of the petitioner was closed by impugned order. She further contends that it is a matter of record that despite issuance of summons and non-bailable warrants, witness of the Excise and Taxation Department did not appear. Thereafter, the evidence of the petitioner was closed by order. She submits that the petitioner has duly served the witness through dasti process and also deposited the diet money. As such, in the aforesaid circumstances, it was incumbent upon learned trial Court to adopt coercive methods to ensure the presence of aforesaid witness. However, without taking note of this aspect, the learned trial Court proceeded to close evidence of the petitioner, vide impugned order dated 07.02.2025. The petitioner, upon getting knowledge of the said order, preferred an application under Section 311 Cr.P.C. read with Section 348 BNSS, 2023 seeking permission to examine the proprietor of the petitioner's firm. Learned counsel refers to the application (Annexure P-5) and submits that it is clearly indicated therein that without there being any fault attributable to the petitioner, the summoned witness did not turn up. Further, on most of the dates of hearing, the petitioner being the complainant had remained present before learned trial Court. However, on one occasion, the proprietor of the petitioner's firm being under bona fide belief that summoned witness ought to be examined first, did not get himself examined. Additionally, the petitioner has been diligently pursuing the complaint, besides taking requisite steps to ensure the presence of summoned witnesses and in case, the impugned order is allowed to be sustained, it will cause great prejudice and incurable loss to the petitioner.

3. Upon advance notice, Mr. Sumeet Singh Brar, Advocate has put in appearance on behalf of the respondent and filed his vakalatnama which is taken on record. Registry is directed to tag the same at the appropriate place. Per contra, learned counsel opposes the prayer made by the petitioner on the ground that the petitioner has approached this Court by way of filing a petition under Section 528 BNSS, 2023 whereas, the petitioner was required to have challenged the impugned orders by filing a revision before learned Sessions Court. He further submits that the case was fixed for evidence of the complainant since 18.08.2021 and the petitioner has availed several opportunities to conclude its evidence but he has failed to do so. As such, the learned trial Court has rightly closed the evidence of the petitioner.

4. Having heard learned counsel for the parties and after perusing the records, the present petition is being decided in limine and the case is taken up for final disposal with the consent of learned counsel for both the parties. This Court finds force in the arguments advanced by learned counsel for the petitioner and the objection of learned counsel for the respondent with regard to filing of revision against the impugned order is required to be rejected in view of the judgment passed by Hon'ble Supreme Court in Sethuraman vs. Rajamanickam 2009 (5) SCC (153), in which, it has been categorically held that revision against an order passed under Section 311 Cr.P.C. is not maintainable. Para 4 of the said judgment is relevant for our consideration, which states as follows: -

"Secondly, w