The court has the discretion to refuse a request to summon a witness under Section 311 Cr.P.C. if it finds that the evidence sought to be adduced is not relevant or necessary for the just decision of the case.

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 10180/2022

Jahuruddin Son Of Shri Kallu Khan, Resident Of 135, Kallu Hotel,

Ramganj Bazar, Jaipur, Rajasthan.

----Petitioner

Versus

Mustkim Qureshi Son Of Mohammad Hussain, Resident Of House

No. 597, Namak Ki Mandi, Kishsanpole Bazar, Jaipur (Raj).

Another Address- Shop No. 12,meat Market, Ajmer Gate, Jaipur

(Rajasthan).

----Respondent

For Petitioner(s)

:

Mr. S.B. Gori

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

11/01/2023

Instant petition has been filed by the petitioner against the

impugned order dated 09.09.2022 passed by the Special

Metropolitan Magistrate (N.I. Act Cases) No. 1, Jaipur

Metropolitan-II by which the application filed by the petitioner

under Section 311 Cr.P.C. for summoning the Bank Manager has

been rejected.

Counsel for the petitioner submits that the cheque in

question was issued by the petitioner on 15.02.2013 and the

validity of the cheque was three months but the said cheque was

presented by the complainant with the Bank on 16.05.2013 that is

after expiry of the validity period. Counsel submits that the above

invalid cheque was dishonored by the Bank with the remark that

“Funds Insufficient”. Counsel submits that the evidence of the

(2 of 3)

[CRLMP-10180/2022]

Bank Manager is essential for disposal of the complaint filed by the

complainant against the petitioner for the offence under Section

138 of the N.I. Act but the trial Court has erred in rejecting the

application filed by the petitioner under Section 311 Cr.P.C.

Heard and considered the submissions made at bar and

perused the material available on record.

Perusal of the impugned order indicates that the cheque in

question bears the date i.e. 15.02.2013 and the same was

presented before the Bank on 16.05.2013 and the said cheque

was bounced by the Bank with the remark that “Funds

Insufficient” thereafter, the complainant issued a notice to the

accused for payment of the amount mentioned in the cheque and

when the amount was not paid to the complainant then the instant

complaint under Section 138 of the N.I Act has been filed against

the petitioner. Perusal of the impugned order further indicates that

after getting the sufficient opportunity to cross examine with the

witness, the evidence was closed on 09.04.2019 and thereafter,

the case was posted for final arguments. At this stage, the

petitioner has submitted the application for summoning the Bank

Manager for the purpose of proving the fact that whether the

cheque in question was valid or not as per Section 35-A of the

Banking Regulation Act. It is question of law which is required to

be adjudicated by the trial Court at the time of final disposal of the

complaint. For proving this fact, summoning of the Bank Manager

is not at all required, it appears that the said application has been

submitted by the petitioner at the belated stage of final argument

of this matter to delay the disposal of the complaint.

(3 of 3)

[CRLMP-10180/2022]

In view of the discussions made hereinabove, I find no error

in the impugned order passed by the Court below, hence this

petition being devoid of merit and the same is hereby dismissed.

Stay application also stands dismissed.

(ANOOP KUMAR DHAND),J

Ashu/34