IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CrMMO No. 159 of 2011 Date of decision:8.12.2011. ----------------------------------------------------------------------------- Govind Singh, son of Shri Uttam Singh, r/o House No. 298, W. No. 10, Devi Nagar, Tehsil Paonta Sahib, District Sirmour, H.P. .....Petitioner. Vs. Khada Nand, son of Shri Bhem Prasad, r/o Badripur, Tehsil Paonta Sahib, District Sirmour, H.P. .....Respondent. Petition under Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India for quashing, setting aside order dated 9.8.2011 passed by the learned Judicial Magistrate Ist Class, Court No.1, Paonta Sahib, H.P. in Criminal Case No. 131/3 of 2009 titled as Khada Nand vs. Govind Singh under Section 138 of Negotiable Instruments Act. -------------------------------------------------------------------------------- Coram: The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. _____________________________________________________ For the petitioner : Mr. Karan Singh Guleria, Advocate. For the respondent : Mr. Anil Jaswal, Dy.AG. Justice V.K. Sharma, J. (Oral). The petitioner herein, who is the accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, had filed two applications, under Sections 45 of the Indian Evidence Act and 311 of the Code of Criminal Procedure, which came to be dismissed by the learned trial Magistrate vide the impugned order dated 9.8.2011. 2. Admittedly, the accused had led evidence in defence which was ultimately closed by order of the Court. It was at the stage 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 of final arguments that the aforesaid applications were moved. 3. In support of the contentions raised by the accused in the present revision petition, reliance has been placed on a judgment of the Hon’ble Supreme Court in T. Nagappa v. Y.R. Muralidhar, AIR 2008 Supreme Court 2010 (para 8) and a judgment of this Court in CrMMO No. 251 of 2010, Sandeep Kumar versus Chhaju Ram & anr decided on 27.4.2011. In so far the proposition of law laid down in these authorities that the accused has a legal right to lead evidence and cannot be denied such right and that it is up to the trial Court to appreciate the said evidence, there can be no dispute with the same. However, the fact remains that in the present case the accused was duly afforded an opportunity by the learned trial Court to lead evidence and he had in fact led such evidence. 4. The application under Section 45 of the Evidence Act was moved with the following prayer on the ground that though the cheque bears the signatures of the accused, yet the body of the same is in the hand of one B.D. Khantwal:- “It is, therefore, prayed that the application may kindly be allowed, Sh. B.D. Khantwal, may kindly be summoned to give his sample handwriting in this Ld. Court and the original application DW3/A, Original Cheque Ex. DW2/A, be requisitioned from PNB, Paonta Sahib and from Case File bearing No. 122/3 of 2009, titled as Sudhir Mehta Vs. Govind Singh, respectively and all these documents be sent for examination as required and mentioned in paras No. 3 to 10 above, in the interest of justice.” 3 5. However, the fact remains that the said Shri B.D. Khantwal is not an accused in the case and is also not a witness. In such circumstances, I am afraid that it is not within the powers of the learned trial Court to compel him to give his handwriting for comparison with the alleged disputed writings. Thus, in so far as the prayer under Section 45 of the Evidence Act is concerned, the same, to my mind, has been rightly rejected by the learned trial Court and no interference is warranted in this regard by this Court. 6. The prayer in the application under Section 311 Cr.P.C. was as under:- “It is, therefore, prayed that the application may kindly be allowed and DW3 be re-called or any other officer of the bank, may kindly be called/summoned along with the original application dt. 18/07/2009, for stopping the payment of 5 cheques, made by the accused/applicant to the bank.” 7. DW3, Shri Govind Singh, Field Officer, Punjab National Bank, Paonta Sahib, was called as a witness by the accused to prove an application dated 18.7.2009 said to have been moved by him to the said bank for stopping payment of cheques including the cheque in dispute. However, DW3, Shri Govind Singh stated in the Court that he could not find the said application in the bank and further stated that he was not in a position to state that in case an effort is made to trace the application, the same would be found. 8. The accused has also not brought on record a copy of this application. However, with a view to afford an opportunity to DW3, Shri Govind Singh or the concerned official of the bank to make another effort to trace the aforesaid application, it shall be expedient and in the interest of justice to grant the prayer of the accused for recalling the said witness or summon the concerned official of the bank to produce and prove the 4 said application, if at all, the same is available in the records of the bank. 9. In view of the above, the petition is partly allowed and the prayer of the accused for recalling DW3, Shri Govind Singh or calling the concerned official of the bank to produce and prove the aforesaid application under Section 311 Cr.P.C. is granted subject to costs of Rs. 1,000/-. The costs shall be tendered in the learned trial Court. 10. The parties through their learned counsel are directed to put in appearance before the learned trial Court on 26.12.2011. The accused shall take requisite steps to recall DW Shri Govind Singh or call the concerned official of the bank within a week from 26.12.2011. Thereafter, the learned trial Court shall proceed to record the additional evidence and dispose of the complaint in accordance with law as expeditiously as possible. 11. The petition stands disposed of in the above terms. (V.K. Sharma) Judge December 8, 2011 (cr)