Criminal Misc. M No.18645 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Misc. M No. 18645 of 2008 Date of Decision: March 09, 2009 M/s Estex Wollen Mills (Pvt.) Ltd. ...........Petitioner Versus M.L.Bhatia and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr. Hemant Saini, Advocate for the petitioner. Mr.B.C.Bitta,Advocate for the respondent ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C' for short) seeking setting aside of the order dated 9.6.2008 (Annexure P2) passed by the Court of Special Judicial Magistrate, Amritsar whereby the application for leading additional evidence by the petitioner for placing on record the judgment of the Board of Industrial and Financial Reconstruction (BIFR) in a case No. 1365 under Section 138 of the Negotiable Instruments Act,1888 (hereinafter referred to as `the Act') was dismissed. Respondent No.1 has filed a complaint under Section 138 of the Act wherein the petitioner has been arrayed as accused No.2. After completion of complainant's evidence, statements of the accused were recorded under Section 313 Cr.P.C. Thereafter, vide order dated 18.4.2007 defence evidence of the accused was closed by order. On the adjourned date, an application was filed by the accused seeking permission to lead Criminal Misc. M No.18645 of 2008 2 additional evidence. The said application was dismissed vide the impugned order dated 9.6.2008 (Anneuxre P2) by the Special Judicial Magistrate, Amritsar. Hence the present petition. Learned counsel for the petitioner has submitted that the petitioner by way of additional evidence only wants to place on record a copy of the judgment passed by BIFR. The fact that whether the judgment is applicable/relevant or not would be considered by the trial Court at the time of decision of the complaint. Learned counsel for respondent No.1 has vehemently opposed the application on the ground that the judgment sought to be placed on record was not relevant for the decision of the case as the cheque in question was dated 16.12.2002,whereas, the proceedings for declaring the accused firm as sick unit were of the year 2004. Learned counsel for the petitioner, during the course of arguments, has placed on record the interim orders passed by the trial Court from time to time. A perusal of the interim orders reveal that the complaint was presented on 10.6.2003. Thereafter, preliminary evidence was led and the accused were ordered to be summoned to face trial under Section 138 of the Act vide order dated 10.1.2004. Complainant closed his evidence on 9.1.2007. Statements of the accused under Section 313 Cr.P.C. were recorded on 5.3.2007 and the case was adjourned for defence evidence for 14.3.2007. On the said date, last opportunity was granted to the accused to conclude their evidence on 18.4.2007 and on the said date, the evidence of the accused was closed by order although the complainant closed his evidence on 9.1.2007 with regard to the complaint filed on 10.6.2003. The accused were virtually given only two opportunities to lead their evidence Criminal Misc. M No.18645 of 2008 3 on the adjourned date i.e. 24.4.2007. Accused filed an application for leading additional evidence. By way of additional evidence, accused wanted to prove on record a copy of the judgment passed by BIFR in case No. 1365 titiled as `M.L.Bhatia vs. M/s Estex Woollen Mills'. The relevancy of the said judgment would be more appropriately gone into and considered at the time of the decision of the complaint. By disallowing the application for permission to lead additional evidence and closing the evidence of the accused by not giving them appropriate opportunity to lead their evidence amounts to miscarriage of justice so far as accused are concerned. Accordingly, the order dated 9.6.2008 (Annexure P2) declining prayer for leading additional evidence is set aside. Consequently, the application filed by the accused for leading additional evidence is allowed. (Sabina) Judge March 09, 2009 arya