IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 413 of 2024 Reserved on: 25.06.2025 Date of Decision: 08.07.2025.

Hans Raj ...Petitioner Versus M/s. Kushang Traders ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ No.

For the Petitioner : Mr. Tek Chand, Advocate.

For the Rhespondent : Ms. Pooja Thakur, Advocate.

Rakesh Kainthla, Judge The present revision is directed against the order dated

14.06.2024, vide which an application filed under Section 311 of Cr.P.C. for recalling the complainant was allowed. (The parties shall hereinafter be referred to in the same manner in which they are arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint against the

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (“in short N.I. Act”). It was asserted that the accused purchased the apple boxes of various quality from the shop of the complainant. He paid an amount of ₹9,00,000/-. He issued a cheque of ₹3,00,000/- on 16.10.2019 to discharge his legal liability to pay the remaining amount. The cheque was dishonoured on presentation with the endorsement ‘funds insufÏucient’. The accused did not pay the amount despite the roeceipt of the demand notice. Hence, it was prayed that the aCction be taken against the accused.

3. The learned Trial Court summoned the accused, put the notice of accusation to him and recorded the statements of witnesses.

4. The complainant filed an application under Section 311 of Cr.P.C. for placing on record the partnership deed and for examination the relevant record. It was asserted that the accused summoned the witness from APMC, Shimla, who misstated that the shop was allotted to Het Ram. This witness failed to produce the complete record of the Partnership of M/s. Kushang Traders. M/s. Kushang Traders is a partnership firm having two partners, namely, Het Ram and Madan Lal. Madan Lal is authorised to represent the Firm and execute all the documents on behalf of the Firm. The partnership deed is required to be placed on record.

Hence, the application.

5. The application was opposed by filing a reply taking a preliminary objection regarding the lack of maintainability. The contents of the application are denied on merits. It was asserted that the complainant filed the complaint as a proprietor of M/s. Kushang Traders. He stated in his cross-examination that he could produce the record of M/s. Kushang Traders. The record maintained by APMC, Shimla, shows that the shop No.46 was allotted to Het Ram as the Proprietor of M/s. Kushang Traders. The complainant found, after the examination of DW2, that his complaint was liable to be dismissed, and he filed the present application to concoct a false story. Hence, it was prayed that the present application be dismissed.

6. Learned Trial Court held that the Partnership Deed is necessary to adjudicate the dispute pending before it. The accused will have an opportunity to cross-examine the witness, and no prejudice would be caused to him. Therefore, the application was allowed.

7. Being aggrieved from the order passedH by the learned Trial Court, the accused filed the present petition asserting that the learned Trial Court erred in allowing the application. The complainant is trying to project a different case, which was not pleaded in the plaint. The complainant had various opportunities to bring the documents on record, but he failed to do so. The application was filed to fill the lacuna and build a new case. The jurisdiction under Section 311 of Cr.P.C is to be exercised judiciously . The complainant asserted in the title of the complaint that he is the proprietor of M/s. Kushang Traders. He cannot be permitted to set up a different plea. Therefore, it was prayed that the present petition be