The petitioner is the complainant in a

prosecution under Section 138 of the Negotiable

Instruments Act. The counsel engaged by him to file

the complaint had relinquished the matter whereupon

he engaged another counsel who passed away at the

time of hearing. The present counsel is engaged only

at the time of hearing. The petitioner could not

produce the acknowledgment card of the receipt of

lawyer notice by the accused, though he produced

lawyer notice as well as the receipt of sending lawyer

notice through registered post. The defence of the

accused is that he has not received the lawyer notice

and the address shown as that of the accused is not

the correct address. The petitioner filed application

seeking to re-open the evidence under Section 311 of

the Cr.P.C.to produce a lawyer notice sent on behalf of

the wife of the accused showing the address of the wife

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of the accused as that of the address of the accused

shown in the complaint as well as in the lawyer notice

in the impugned case. The court below rejected the

application by Annexure-V order on the short reason

that no reason is shown by the petitioner as to what

prevented him from producing the document at the

time of trial. Highly aggrieved by the order of the

court below, the appellant has preferred the appeal on

the ground that Annexure A5 is vitiated by manifest

error on the face of it. The delay in producing the

document is not at all vital if reopening the evidence

and letting the document in evidence would enable the

court to reach a judicious decision in the matter. In

fact, the original counsel engaged by the petitioner had

relinquished his vakalath and the counsel engaged

thereafter passed away. The petitioner came to know

of the dispute regarding the receipt of notice only from

the present lawyer which compelled the petitioner to

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produce the lawyer notice on behalf of the wife of the

accused. Therefore there is legal justification for the

belated production of the document. The reopening of

evidence for the purpose of production of lawyer notice

on behalf of wife of the accused does not tantamount

to filling up the lacuna in the case of the complainant

causing serious prejudice to the accused. There is

already evidence on record regarding the lawyer notice

as well as the sending of lawyer notice through

registered post.

2. Now the learned counsel for the petitioner

has submitted that it is highly necessary to produce the

lawyer notice which is in the custody of the petitioner

so as to establish his case. The main case of the

respondent was that he has not received the lawyer

notice alleged to have send by the complainant. Now

the attempt on the part of the petitioner is to produce

the lawyer notice which was alleged to have send on

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behalf of the wife of the respondent/ accused.

According to the petitioner, the respondent/ accused

was residing on the same address which was

mentioned in the lawyer notice send on behalf of the

wife of the respondent/ accused. The respondent

raised a contention that no sufficient reason was

established by the petitioner so as to reopen the

evidence. It is true that the petitioner has filed the

petition under Section 311 of the Cr.P.C. to reopen the

evidence at the time of hearing and the learned

counsel for the respondent has raised argument that

the impugned notice is seen issued to the petitioner on

28.08.2009.

3. At the time of evidence of the petitioner

also, the notice was in the possession of the petitioner.

But, no reason was established by the petitioner as to

why it was not produced during the trial. The lower

court has held that notice was produced at the time of

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the fag end of the trial and it was filed with ulterior

motive and mala fide intention of causing annoyance to

the respondent also. It was also held that the

petitioner cannot fill up the lacunae of the case by

invoking Section 311 of Cr.P.C. at the stage of heari