CRM No.M-23409 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CRM No.M-23409 of 2010 (O & M) Date of decision : 8.8.2011 Vinod Kumar Mahajan ........Petitioner Vs. M/s Cheap Silk Emporium, Pathankot and others ......Respondents CORAM : HON'BLE MR. JUSTICE AJAI LAMBA Present:- Mr.D.K.Gupta, Advocate, for the petitioner Mr.R.S.Chauhan, Advocate, for respondents No.1 to 3 --- AJAI LAMBA, J (Oral) This petition has been filed under Section 482 of the Criminal Procedure Code praying for quashing/setting aside the impugned order dated 3.6.2010 passed by Judicial Magistrate Ist Class, Pathankot, placed on record as Annexure P-1, vide which the application filed by the petitioner/complainant under Section 311 of the Criminal Procedure Code, for summoning a witness in a complaint under Section 138 of the Negotiable Instruments Act, 1881, has been dismissed. A criminal complaint Annexure P-2 was filed at the instance of the petitioner alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881. While the evidence of the complainant was still going on, application dated 2.2.2010 was filed under section 311 of the Criminal Procedure Code with the plea that record of payment, made to the accused, is CRM No.M-23409 of 2010 (O & M) -2- with Oriental Bank of Commerce and therefore, a witness from Oriental Bank of Commerce viz. record clerk/concerned clerk, through the Branch Manager, Oriental Bank of Commerce, Dalhousie Road, Pathankot is required to be summoned alongwith the record with regard to payments made by way of cheques mentioned in the application. In net-shell, the complainant wants to establish that the petitioner-complainant made payments to the respondents- accused by virtue of cheques, by way of record to be produced by Oriental Bank of Commerce. In lieu of the said amount, the respondents-accused were required to discharge their legal liability which was to be discharged vide the negotiable instrument that has been dishonoured. In this view of the matter, it has been pleaded that summoning of witness alongwith record from the bank as prayed for, is necessary and essential for consideration of the issue under Section 138 of the Negotiable Instruments Act, 1881. I have considered the contention of the learned counsel. It has been made out that the case is still at the evidence stage of the complainant. In proceedings under Section 138 of the Negotiable Instruments Act, 1881 payment of money is required for the discharge, in whole or in part, of any debt or other liability. So as to show that the respondents-accused were liable to pay money, the evidence is required to be brought on record by the complainant. In the complaint in para 3, specific assertion has been made that the respondents-accused owed money and the same was payable to the complainant by the respondents-accused. Considering the totality of the facts & circumstances of the case; nature of evidence sought to be brought on record and the fact that the trial is at the stage of complainant's evidence; this petition is allowed. Impugned order Annexure P-1 is hereby quashed. CRM No.M-23409 of 2010 (O & M) -3- Accordingly, the trial Court is directed to give two opportunities to the petitioner to bring the evidence, as sought to be brought through application filed under section 311 of the Criminal Procedure Code. (AJAI LAMBA) JUDGE 8.8.2011 akm