IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MMO No.55 of 2009. Date of Decision: 31st March, 2010. Kishori Lal .. Petitioner. Versus P.N. Kamboj .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the petitioner: Mr. Gulzar Singh Rathore and Mr. Virender Singh Kanwar, Advocates. For the respondent: Mr. Anup Rattan, Advocate. Surinder Singh, J (oral) The instant petition is filed by the accused/petitioner under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India against the order dated 6th April, 2009, passed by the learned Judicial Magistrate 1st Class, Court No.3, Shimla, in Case No.197/3 of 2006, whereby his evidence was closed by the order of the Court. Heard and gone through the record of the case. The respondent had filed a complaint under Section 138 of the Negotiable Instrument Act, 1881 against the accused/petitioner. The evidence of the complainant was closed on 26th June, 2008 thereafter the 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - matter was fixed for the statement of the accused/ petitioner. The statement of the accused/petitioner under Section 313 of the Code of Criminal Procedure was also recorded on 10th July, 2008 and the case was adjourned for his evidence at various occasions, but he did not take any steps. On 21st January, 2009, last opportunity was accorded on filing of the process fee within five days and the case was adjourned for 28th March, 2009. Again bailable warrants and notice under Section 350 of the Code of Criminal Procedure were ordered to be issued and steps were required to be taken within one week. But again steps were not taken and ultimately the case was adjourned for 6th April, 2009. On 6th April, 2009 an application under Section 315 of the Code of Criminal was filed to examine the accused/petitioner, as his witness, which was allowed. His statement was recorded and he also examined one of the defence witnesses Shri Naresh Thakur (DW-2) and another witness Mahesh Kumar of the same fact was not present and the evidence of the accused/petitioner was closed by the order of the Court. It is this order which has been impugned in this petition. Learned Counsel for the petitioner has argued that the cheque amount was paid by the accused/ petitioner to the respondent vide receipt executed on 29th March, 2008 (mark P-1) in the presence of witnesses Mahesh Kumar and Naresh Thakur and out of them - 3 - Naresh Thakur (DW-2) was examined. Another witness Mahesh Kumar was required to be examined as he is a material witness of the same fact to formally exhibit the said document. Learned Counsel for the respondent countered the aforesaid arguments that the learned trial Court had accorded repeated opportunities to the accused/ petitioner. Therefore, it is not necessary to examine Mahesh Kumar. The document though tendered in evidence is marked as “P-1” in the statement of DW-2 Naresh Thakur, who had signed it as one of the marginal witnesses. Thus, in order to remove the formal defect an opportunity is accorded to the accused/petitioner to exhibit the said receipt (mark P-1) by re-examining DW-2 Naresh Thakur only. Therefore, the impugned order passed by the learned trial Court is modified to the extent that the accused/petitioner shall either produce Naresh Thakur (DW-2) himself for his re-examination to the above limited extent on the date to be fixed by the learned trial Court within 15 days from their appearance before the Court on the date fixed hereinafter. In case the assistance of the Court is required, the accused/petitioner shall deposit PF and DM etc. to serve him and also take Dasti summons for his service. If he would not produce or the witness failed to turn up, the evidence of the accused/petitioner - 4 - shall be deemed to have been closed and the learned trial Court shall finally dispose of the matter after hearing the parties. The parties are directed to be present before the learned trial Court on 19th April, 2010. The record of the trial Court be returned forthwith. The petition stands disposed of. Cr.M.P. No. 307 of 2009. In view of the disposal of the main petition, this application also stands disposed of and interim order dated 29th May, 2009 shall stand vacated. March 31, 2010. (Surinder Singh), J. (rc)