Criminal Misc. No. M-5520 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-5520 of 2009 Date of Decision: 08.03.2010 Banarsi Lal Prop. of B.L. Passi and Company, near Zanana Hospital (Old Sant Ram Hospital) Chowk Rambagh, Amritsar. ... Petitioner Versus M/s Arora Industries, Shop No. 13, Handa Market, Lohgarh Gate, Amritsar, through its partner Sh. Kamal Kishore son of Sh. Jagdish Raj. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vivek Salathia, Advocate, for the petitioner. Mr. P.P.S. Goraya, Advocate, for the respondent. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the order dated 16.01.09 (Annexure P1), passed by the Court of Additional Sessions Judge, Amritsar, vide which, it dismissed, the application, under Section 391 Cr.P.C., for additional evidence, has been filed by the petitioner. 2. The facts, in brief, are that, in the month of November, 2000, the petitioner, purchased cycle parts, to the tune of Rs. 8,81,480/-, on credit, from the complainant/respondent No. 2, Criminal Misc. No. M-5520 of 2009 2 vide bills No. 707, 708, 709 and 711. The petitioner, in order to discharge his legally enforceable liability, issued cheque, bearing No. 771805 dated 04.12.2000, in the sum of Rs. 8,81,480/-, drawn, on the Punjab National Bank, Mewa Mandi, Amritsar. However, when the aforesaid cheque, was presented, by the complainant, before his banker namely Punjab and Sind Bank, Tunda Talab Branch, Amritsar, the same was dishonoured, vide memo dated 05.12.2000, with the remarks 'Payment stopped by the drawer'. Thereafter, a legal notice, dated 16.12.2000, was served, by the complainant, upon the petitioner, calling upon him, to make payment of the dishonoured cheque, within 15 days, but to no avail. Ultimately, a criminal complaint, under Section 138 of the Negotiable Instruments Act (hereinafter to be called as the 'Act' only), was filed, against the petitioner. 3. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted the accused, for the offence, punishable under Section 138 of the Act, and sentenced him, to undergo rigorous imprisonment, for a period of 01 year, and, to pay a fine of Rs. 5,000/-, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 01 month. The fine, was also ordered, to be paid, as compensation to the complainant. 4. Feeling aggrieved, an appeal, was preferred, by the appellant, during the pendency whereof, an application, under Section 391 Cr.P.C, for additional evidence, was filed, by him, Criminal Misc. No. M-5520 of 2009 3 which was dismissed, by the Court of Additional District Judge, Amritsar, vide the order impugned. 5. Feeling dissatisfied, the instant petition, has been filed, by the petitioner. 6. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 7. The Counsel for the petitioner, submitted that the petitioner, was convicted, for the offence, punishable under Section 138 of the Act, for the alleged dishonour of the cheque. He further submitted that, during the pendency of appeal, an application, under Section 391 Cr.P.C., for additional evidence, was moved, but, the same was illegally dismissed. He further submitted that the complainant, had produced forged bills, before the trial Court, and, played a fraud upon the petitioner. He further submitted that the additional evidence, sought to be produced, was essential, for the just decision of the case, but, the same was illegally declined. He further submitted that the order impugned, being illegal, is liable to be set aside. 8. On the other hand, the Counsel for the respondent, submitted that, during the trial of the case, full opportunity, was granted, to the petitioner, to lead his evidence, and he led the same. He further submitted that, if the petitioner, wanted to lead any other evidence, he could lead the same in the trial Court. He further submitted that the Appellate Court, was right, in coming to the conclusion, that no ground, for allowing the additional evidence, was Criminal Misc. No. M-5520 of 2009 4 made out, and, thus, rightly dismissed the application. He further submitted that the order impugned, passed by the Court below, being legal and valid, is liable to be upheld. 9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The case of the petitioner, was that, bill No. 709, was never issued and it was forged. It may be stated here that, during the course of trial, the complainant, came up with the plea, that it was bill No. 710 and not 709, and, only on account of clerical mistake, that bill No. 709, was mentioned. So the mistake, was corrected, by the complainant. The petitioner, wanted to examine Balwant Singh Rickshawala, and produce Pardeep Kumar, his son. The Court below, was right, in coming to the conclusion, that sufficient opportunity, was granted, to the petitioner, during the course of the trial of the complaint, to produce his evidence, and, he could produce Balwant Singh Rickshawala and Pardeep Kumar, his son. No explanation, was furnished, by the petitioner, as to what prevented him, from examining Balwant Singh Rickshawala and Pardeep Kumar, his son. The post-dated cheque, in the sum of Rs. 8,81,480/-, was issued, by the petitioner, in favour of the respondent, and, when the same, was presented, it was dishonoured. The provisions of Section 391 Cr.P.C., cannot be invoked, just with a view, to fill up the lacunae, left in the case of a party. The petitioner, was required to be more vigilant and diligent, at the time, he had Criminal Misc. No. M-5520 of 2009 5 been given the opportunity, to lead his evidence. If he was not diligent and vigilant, enough, at the time of leading evidence, during the trial of the complaint, he could not say, that he should be given an opportunity, to lead additional evidence, during the course of appeal. The complaint, under Section 138 of the Act, was filed, on the basis of cheque P2, which was issued, by the petitioner, and, on presentation it was dishonoured. The Appellate Court, in my opinion, was right, in declining the application, under Section 391 Cr.P.C. There is no illegality or perversity, in the order, passed by the Court below. The order, passed by the Court below, is, thus, liable to be upheld. 10. For the reasons recorded above, Criminal Misc. No. M-5520 of 2009, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 11. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately. 08.03.2010 (SHAM SUNDER) Amodh JUDGE