The order under Section 311 of the Cr.P.C. is an interlocutory order, not subject to revision under Section 397(2), affirming the integrity of trial procedures.

Hans Raj f ...Petitioner Versus M/s. Kushang Traders t ...Respondent Coram u Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ No.

For the Petitioner : Mr. Tek Chand, Advocate.

For the Respondent : None.

Rakesh Kainthla, Judge The present revision is directed against the order dated 14.06.2024, passed by learned Additional Chief Judicial Magistrate, Court No-II, Shimla, District Shimla (learned Trial Court), vide which the application filed under Section 311 of the Code of Criminal Procedure (Cr.P.C.) for recalling the respondent (complainant before the learned Trial Court) was allowed. (The parties shall hereinafter be referred to in the same manner in which they were arrayed before the learned Trial Court for convenience.)

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

2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint against the 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 qualities from the shop of the complainant. He paid an amount of ₹9,00,000/-. He issued a cheque of ₹3,00,000/- to discharge huis legal liability to pay the remaining amount. The cheque owas dishonoured on presentation with the endorsement ‘fuCnds insufÏcient’. The accused did not pay the amount despite the receipt of the demand notice. Hence, it was prayed that the action 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 of the relevant record witnesses. 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 deed 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 were denied on merits. It was asserted that the complainant filed the complaint as a proprietor of M/s. Ku shang 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 shop No.46 was allotted to Het Ram Khanda as the Proprietor of M/s. Kushang Traders. The complainant found, after the examination of DW1, 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 by the order passed 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 complaint. 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 the