The power under Section 311 Cr.P.C. (Section 348 BNSS) is wide; curing an inadvertent omission to produce a document to clarify the complainant's capacity is permissible for a just decision and does not constitute impermissible 'filling of lacunae'.

MANDEEP PANNU, J. (Oral)

1. The present petition has been filed under Section 528 of the BNSS for quashing of the impugned order dated 17.11.2025 passed by the learned Judicial Magistrate First Class, Gurugram in complaint under Section 138/141/142/143-A of the Negotiable Instruments Act bearing No. NACT/16533/2020 dated 27.08.2020, whereby the application under Section 311 Cr.P.C./ Section 348 BNSS filed by the respondents/complainant was allowed.

2. Brief facts necessary for disposal of the present petition are that the complainant had moved an application under Section 311 Cr.P.C. stating that due to inadvertence, the Special Power of Attorney executed by the proprietor namely Aridaman Singh in favour of Chander Mohan could not be placed on record at the time of filing of the complaint. It was further pleaded that Chander Mohan was only an authorised signatory of M/s Maitri Motors and his father Aridaman Singh was the actual proprietor of the firm, and therefore permission was sought to place the said SPA on record and to examine the proprietor as a witness. The said application was vehemently opposed by the accused by filing a reply contending that the complaint had been filed in the name of Chander Mohan as proprietor/authorised signatory and no such plea regarding Aridaman Singh being the proprietor was taken earlier, and that the application was moved only after cross-examination to fill up lacuna and to change the nature of the complaint. However, the learned trial Court, vide impugned order dated 17.11.2025, allowed the application holding that the evidence sought to be produced was essential for just decision of the case and that no prejudice would be caused to the accused.

3. Learned counsel for the petitioner has contended that the learned trial Court has failed to appreciate that in the statutory notice as well as in the complaint under Section 138 of the Negotiable Instruments Act and even in the affidavit tendered in evidence, Chander Mohan had represented himself as proprietor/authorised signatory of M/s Maitri Motors. However, during his cross-examination, when he was specifically asked to produce documents regarding proprietorship of the firm, he admitted that his father is the proprietor of the firm. It is further contended that after a lapse of about four years from filing of the complaint, the complainant moved an application under Section 311 Cr.P.C. seeking to place on record a Special Power of Attorney, which is nothing but an attempt to fill up lacuna in the case and to fundamentally alter the nature and foundation of the complaint, which is impermissible in law. It is argued that such an exercise amounts to permitting the complainant to improve his case after disclosure of defence, which causes serious prejudice to the petitioner. Learned counsel for the petitioner has further contended that the learned trial Court, while passing the impugned order dated 17.11.2025, has failed to appreciate the settled position of law that in case of a proprietorship concern, it is only the proprietor who can be held liable under Section 138 of the Negotiable Instruments Act, as the proprietorship concern has no separate legal entity. It is argued that a sole proprietorship firm does not fall within the ambit of Section 141 of the NI Act and the concept of vicarious liability is not attracted in such cases. In support of his contentions, reliance has been placed upon the judgment of the Hon’ble Supreme Court in Rag