Crl. Misc. No. M –23250 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Misc. No. M –23250 of 2010 (O&M) Date of decision:- 18.8.2010 Vikram Sen & Anr. ... Petitioner Versus M/s Ajay Steel Rolling Mills ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Arvind Kashyap, Advocate, for the petitioners. Gurdev Singh, J (oral) Heard. The petitioners – Vikram Sen and M/s Vikram Forging's, have filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') for quashing the order dated 8.4.2010 passed by Sub Divisional Judicial Magistrate, Amloh in complaint No.44 dated 2.3.2004, titled M/s Ajay Steel Rollings Vs. M/s Vikram Forging's & Anr, vide which the Court has allowed the examination of Ashwani Kumar partner of the respondent-firm, who has been substituted as such in place of Santosh Kumar Sharma. The facts, in brief, are that respondent – firm filed complaint through Santosh Kumar Sharma against the petitioners under Section 138 of the Negotiable Instruments Act 1881, on the ground that the petitioners issued cheque dated 2.1.2004 for Rs.12,000/- in dischare of their previous liability, which on presentment to their banker was dishonoured on account Crl. Misc. No. M –23250 of 2010 (O&M) -2- of insufficient funds in the account of the petitioners and that they failed to pay the amount of that cheque in spite of the service of the statutory notice to that effect. The respondent-firm produced the evidence, after appearance of the petitioner in the Court, in support of the contentions made in the complaint. After that evidence was closed the statements of the petitioners were recorded under Section 313 of the Code. Thereafter an application was moved by the respondent-firm for substituting Ashwani Kumar- partner in place of Santosh Kumar, which was allowed. Another application was filed under Section 311 of the Code for examining that Ashwani Kumar as a witness, which was also allowed vide aforesaid order. It has been submitted by learned counsel for the petitioners that the respondent – firm wants to fill up lacuna by examining Ashwani Kumar – partner, which is not permissible and that aspect of the case was never looked into by the learned Magistrate while allowing the application. He also submitted that this evidence is not admissible as the petitioners challenged the competency of Santosh Kumar Sharma to file complaint on behalf of respondent – firm. The Judicial Magistrate enjoys wide discretion under Section 311 of the Code in allowing the additional evidence. That Section consists of two parts. The power conferred by the first part is discretionary whereas the second part makes it mandatory for the Magistrate to allow that evidence to be produced by way of additional evidence which is essential to the just decision of the case. A perusal of the impugned order makes it very much clear that the learned Magistrate exercised the discretion, conferred upon him, Crl. Misc. No. M –23250 of 2010 (O&M) -3- judiciously. He specifically incorporated in the order that the deposition of this partner shall be confined to the competency of the said manager and the power of attorney given to him and her own status as partner of the firm. It is also incorporated in the order that deposition regarding the transaction and cheque in dispute of this newly added partner shall be discarded as that will amount to filling up the lacuna. In that eventuality, it cannot be said that there is any force in the submissions made by learned counsel for the petitioners. Once Ashwani Kumar has been allowed to be substituted as partner, the respondent – firm can certainly lead the evidence to the effect that he was a partner in the firm and that this firm had authorised Santosh Kumar Sharma – Manager to file the complaint by executing power of attorney in his favour. There is no merit in the petition and the same is, therefore, dismissed. August 18, 2010 (Gurdev Singh) tripti Judge