Narender Kumar Verma vs State Of Rajasthan And Ors

The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 26.11.2018 passed by learned Special Judicial Magistrate No.2, (NI Cases) Sriganganagar in Criminal Case No.789/2013, whereby the learned court below has dismissed the application filed by the petitioner under Section 311 for calling the complainant/respondent No.2 and his mother Basant Kaur in evidence.

The trial of Section 138 of the Negotiable Instruments Act, wherein the petitioner is an accused and respondent No.2 is the complainant, and which is at its fag end, pertains to a cheque bearing No.002750 dated 01.07.2013 drawn on Axis Bank Limited at its Sriganganagar Branch and the liability there against was to be discharged. However, due to insufficient funds in the related bank account and the consequential return of the said cheque by the concerned Branch gave rise to the present dispute.

The bone of contention in the present case is that the petitioner has moved an application under Section 311 Cr.P.C. seeking examination of PW-1 regarding Exhibits D-1 and D-5.

Learned counsel for the petitioner submits that the petitioner received the aforementioned documents at a subsequent stage, and therefore, examination regarding the same could not be done earlier. However, as per learned counsel for the petitioner, since examination in relation to such documents was necessary, therefore, an application seeking such examination was filed by the petitioner, which ought to have been allowed by the learned court below; but the said application was rejected vide the impugned order passed by the learned court below.

Learned counsel for the petitioner, while relying upon the judgment rendered by this Hon'ble Court in Laxmi Mal Lodha & Anr. Vs. Suresh Lodha reported in 2011(1) Cr.L.R. (Raj.) 298, has tried to impress upon this Court that the documents exhibited by the petitioner need to be proved by the petitioner himself.

Learned counsel for the respondent however, while supporting the impugned order, submits that the petitioner is merely trying to delay the trial, which is going on from last six years since 2013.

Learned counsel for the respondent further submits that previously also, an application under Section 91/311 Cr.P.C. preferred by the petitioner was rejected by the learned court below, and at that time, the issue which is being raised now in the present application was not raised. Thus, learned counsel for the respondent submits the issue so raised is barred by constructive res judicata.

Learned counsel for the respondent also submits that the petitioner had ample opportunity to prove such documents, while he examined the respondent's mother, but he failed to do so at that time.

Learned counsel for the respondent further submits that if the cheque was due towards the security, then it should have been issued in the name of Basant Kaur, the respondent's mother, and not in favour of the respondent.

After hearing learned counsel for the parties and perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that the facts and circumstances of the case are such that it appears that the petitioner is merely trying to delay the trial of Section 138 of N.I. Act, which is at the final stage, and that too after six years of institution of the case.

This Court has also seen the facts narrated in the previous application filed by the petitioner under Section 311 Cr.P.C., which too was dismissed by the learned court below, and the ground so taken in the present application were not there in the earlier application.

Learned counsel for the petitioner has also not been able to show any reason why the documents, which were always available with the petitioner, could not be utilized for examining PW-1.

This Court also finds that there is no reason why at this fag end of the trial, such an application has been moved, which does not constitute any justification, and hence, the impugned order is justified.

The precedent law cited by learned counsel for the petitioner is not applicable in the present case.

In view of the above, no interference is called for in the present petition and the same is accordingly dismissed.