Criminal Misc. No. M-8518 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Misc. No. M-8518 of 2009 Date of Decision: 2.4.2009 Kashmir Singh …Petitioner Versus M/s Preet Hire Purchase and Leasing Corporation …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Mandeep S. Sachdev, Advocate for the petitioner. Mr. Vijay Lath, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present petition has been filed under Section 482 Cr.P.C. seeking quashing of order dated 25.2.2009 (Annexure P1) whereby the Additional Sessions Judge, Jalandhar, had declined the application filed by the petitioner under Section 391 Cr.P.C. to recall Manmeet Singh, partner of the complainant firm for further cross-examination. Briefly stated that complainant-respondent had filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner on the ground that loan raised by the petitioner in cash has not been returned and in discharge of the loan, petitioner had issued a cheque which had bounced on the ground that funds were insufficient. The complainant had led preliminary evidence. Petitioner was Criminal Misc. No. M-8518 of 2009 2 summoned to stand trial. The trial concluded. The petitioner/appellant was convicted. Before the Appellate Court, an application was filed under Section 391 Cr.P.C. that Manmeet Singh be recalled for further cross-examination in order to ascertain whether complainant-firm was registered under the Punjab Money Lenders Act or with the Reserve Bank of India or not. It is stated that firm of Manmeet Singh was not competent to give cash loan, therefore, any loan given by them without being registered under the Punjab Money Lenders Act or with the Reserve Bank of India will not be legally enforceable debt. The application was declined by the Appellate Court because in the reply filed to the application, Manmeet Singh has admitted that his firm is neither registered under the Punjab Money Lenders Act or with the Reserve Bank of India, consequently, its effect shall be seen and examined during the course of arguments. I have heard counsel for the parties. Admittedly, accused had drawn a cheque. The cheque had bounds. There is always presumption in favour of the holder of the cheque that the cheque was issued for discharge of liability or debt. This presumption was to be rebutted by the accused. No such effort was made by the accused. It is too late in the day in the appeal to file an application that the witness be recalled for cross-examination. Once it has been stated in the application that the firm was neither registered under the Punjab Money Lenders Act nor with the Reserve Bank of India, its effect will be examined by the Appellate Court during the course of arguments. Counsel for the petitioner has relied upon State of Gujarat v. Criminal Misc. No. M-8518 of 2009 3 Mohanlal Jitamalji Porwal and Another FIR 1987 Supreme Court 1321 to urge that application filed under Section 391 Cr.P.C. cannot be rejected on ground of delay. Delay and necessary for cross-examination are two different things. Application cannot be used as a tool to delay the proceedings. If a delay is justifiable, the Court will always come to the rescue of any party as the journey of the Court is to find truth. Therefore, no benefit can flow to the petitioner from Mohanlal Jitamalji Porwal's case (supra). Counsel for the petitioner has further relied upon Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others 2004(2) Recent Criminal Reports 836 which is known as Best Bakery Case to say that when circumstances indicate substance in application for adducing additional evidence, the Courts should not foreclose the same. In the present case, petitioner has miserably failed to prove such circumstances exist in his favour. No merits dismissed. Nothing stated above shall be construed as expression of opinion on the merits of the case. However, the petitioner is relegated to the liberty to take all arguments before the Appellate Court. (Kanwaljit Singh Ahluwalia) Judge April 2, 2009 “DK”