IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-28417 of 2009 Date of Decision: December 9, 2009 Jaspal Singh. …Petitioner Versus Bhupinder Singh Saggu …Respondent CORAM: HON’BLE MR. JUSTICE S.D. ANAND. Present: Mr. Anil Chawla, Advocate, for the petitioner. Mr. K.S. Kahlon, Advocate, for Mr. D.S. Pheruman, Advocate, for the respondent. S.D. Anand, J. The petitioner herein had launched a prosecution under Section 138 of the Negotiable Instruments Act on an allegation that the respondent – accused had issued the impugned cheque in lieu of a pre-existing liability that the cheque bounced on account of insufficiency of funds and that the respondent did not pay up in spite of the effecting of service of a statutory notice in the context. In the course of the trial, the respondent – accused raised a plea of having paid up the loan amount. On that factual premise, the respondent – accused applied for Crl. Misc. No. 28417 of 2009 dismissal of the complaint. That application was dismissed by the learned Trial Magistrate, vide order dated 22.10.2008, by observing that the controversy in the context could be disposed of only after evidence in the complaint had been recorded. It was thereafter, in the further progress of the trial, that the respondent had filed a plea for a direction to the petitioner herein to produce the original of document dated 22.08.2006. In response thereto, the petitioner – complainant produced the original of document dated 22.08.2006 on record. It is under those circumstances that the petitioner applied for obtaining leave of the Court to file a supplementary affidavit in the context of the contents of document dated 22.08.2006. That plea having been declined by the learned Trial Court vide order dated 28.08.2009, the petitioner – complainant is in revision. It would be appropriate to notice, at the very outset, that the document dated 22.08.2006 purports to be an acknowledgement of liability on the part of the respondent – accused in the context of the allegations in the complaint. It is not that the petitioner – complainant had himself relied upon this document, whether by inadvertence or otherwise. However, the fact remains that this document was produced by the petitioner – complainant only in response to a notice for production thereof by the respondent – accused. The latter 2 Crl. Misc. No. 28417 of 2009 cannot, thus, now turn around and plead for declining of an opportunity to the petitioner – complainant to file a supplementary affidavit. The document aforementioned would enable the learned Trial Magistrate to effectively adjudicate upon the controversy under adjudication. Reliance placed by the learned counsel for the respondent upon 2002(2) R.C.R. (Criminal) 316 – Hari Singh vs. State of Haryana is misconceived for want of commonality of facts and circumstances. In Hari Singh’s case (supra), the learned Magistrate ordered closure of the prosecution evidence after the relevant prosecution had been pending for a period of seven years and no witness came to be examined during that period. It was, therefore, that the Magistrate allowed a plea under Section 311 Cr.P.C. for the summoning of prosecution witnesses. The plea aforementioned had been filed by neither the prosecution nor the complainant but a third person. It was held therein that the third person had no locus standi to file a plea under Section 311 Cr.P.C. and that the prosecution could not be allowed to fill up a lacuna in its case to the disadvantage and prejudice of the accused therein. The petitioner shall stand allowed. The petitioner – complainant shall be entitled to file a supplementary affidavit in the context of the document dated 22.08.2006. The 3 Crl. Misc. No. 28417 of 2009 respondent – accused shall, obviously, be entitled to a right of rebuttal thereof. Disposed of accordingly. December 9, 2009 ( S.D. Anand ) vkd Judge 4