IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No. 1970 of 2010 (O&M) Date of decision: 23.7.2010. Gurminder Pal Singh ......Petitioner Vs. Swaran Singh ...Respondent CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.Saurabh Bajaj, Advocate, for the petitioner. **** ORDER Crl.MIsc.No.36996 of 2010 Crl.Misc.is allowed as prayed for. Crl.Revision No. 1970 of 2010 The present petition has been filed to challenge the order dated 3.7.2010 passed by Additional Sessions Judge, Karnal vide which the application moved by the petitioner for adducing additional evidence has been dismissed. Learned counsel for the petitioner submits that the petitioner was not given any opportunity to lead additional evidence whereas it has wrongly been mentioned in the impugned order that the petitioner was given sufficient opportunities for leading additional evidence. Learned counsel for the petitioner further submits that the petitioner should not suffer due to fault on the part of the advocate as it was mistake on the part of the advocate only. Learned counsel also submits that the evidence is relevant for proper Crl.Revision No. 1970 of 2010 [2] adjudication of the appeal which is pending before the Additional Sessions Judge, Karnal. I have heard the arguments of learned counsel for the parties and have also gone through the impugned order as well as other documents available on the file. In this case, respondent-complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') against the present petitioner. As per allegations contained in the complaint, petitioner was having cordial and friendly relations with the complainant and took advance loan of Rs.1,25,000/- in cash, at the rate of Rs. 2% per month on the said amount, for expansion of business of auto spare parts. The said amount was given by way of Account Payee Cheque bearing No. 643269 dated 15.5.2001. The said cheque was not presented for encashment as per mutual understanding but when the amount was not paid, the cheque was presented in the bank on 20.9.2001 and the same could not be encashed due to insufficient amount in the account. Cheque was again presented in the bank and the same was not encashed on the same ground. Notice under Section 138(b) of the Act was served upon the petitioner to make payment of the amount to the complainant but no reply of the notice was sent and the petitioner was summoned under Section 138 of the Act. The matter was sent to the permanent Lok Adalat for compromise but no compromise could be effected between the parties. On the basis of evidence, the petitioner was convicted by the trial Court as he was found guilty for offence under Section 138 of the Act and was Crl.Revision No. 1970 of 2010 [3] sentenced to undergo RI for 6 months under Section 138 of the Act. He was further directed to pay a sum of Rs.1,50,000/- as compensation under Section Section 357(1) Cr.P.C. to the complainant-respondent. An application was filed by the petitioner for additional evidence under Section 315 Cr.P.C. which was dismissed by the trial Court and revision filed before the Additional Sessions Judge, Karnal was also dismissed. The present petition has been filed to challenge the order passed by the trial Court as well as the revisional Court on the ground that the petitioner was not given sufficient opportunity to lead additional evidence and the same is necessary for just decision of the case. The trial Court has wrongly dismissed the application on the basis of wrong fact whereas neither proper opportunity was granted nor any finding in this regard has been given. Moreover, the mistake is on the part of the advocate appearing before the trial Court and the applicant should not suffer because of the conduct of the advocate. Although an application for additional evidence can be allowed at any stage and the delay in filing the application is not fatal but it is to be seen whether sufficient or genuine reason is there for delay and application could not be filed due to that genuine cause. In the present case, the petitioner was granted sufficient time to lead additional evidence but the same was not led by the petitioner. The petitioner examined two witnesses but he himself did not come in the witness box and the case was adjourned on various dates as it was adjourned initially for 20.2.2007 and the applicant was not present, the case was adjourned to 22.3.2007 then to 18.4.2007 and on 14.5.2007. The Crl.Revision No. 1970 of 2010 [4] petitioner never came present for recording his statement and only one witness was examined on 14.5.2007. The case was adjourned to 17.7.2007 and on that day also, the statement of one witness was recorded but his own statement was not recorded. After that 2 more opportunities were granted for that purpose but he was no present. All these facts, as mentioned above, show that the petitioner was given sufficient opportunities but he could not be available for recording his statement and ultimately the evidence was closed. The conduct of the petitioner is also clear from the fact that the petitioner filed appeal against his conviction order and that appeal was filed on Ist December, 2008 but along with that no application for additional evidence was filed inspite of the fact that application was earlier dismissed i.e. prior to the passing of conviction order. The application before the Ist Appellate Court was filed subsequently. The object of the petitioner was not to adduce additional evidence for just decision of the case but to delay the matter and now the same has been filed to delay the appeal. In view of the facts mentioned above, there is no merit in the petition and the same being devoid of any merit is dismissed. (DAYA CHAUDHARY) JUDGE July 23, 2010. raghav