KARUNA SINGH Vs. STATE & ANR

JUDGEMENT

(1.) The petitioner had instituted a criminal complaint (CC No.215/1/2010) on 24.09.2004 against the second respondent alleging offence under Section 138 of the Negotiable Instruments Act, 1881 having been committed on account of non-payment inspite of notice of demand issued and statedly served in the wake of dishonor of a cheque No.544936 dated 01.09.2004, drawn against account of the second respondent (the accused) with Bank of India, Okhla Industrial Area, Branch, New Delhi. The said cheque for Rs. 25 lacs had statedly been issued in the wake of an Undertaking which had been executed on 10.04.2004 duly attested by a Notary Public, as consideration for transfer of five hundred equity shares of a company named Moral Properties Private Limited by the petitioner (the complainant) and members of her family in favour of the accused.

(2.) It is stated that on the basis of preliminary inquiry, process was issued summoning the accused to face criminal proceedings. The trial commenced with service of notice under Section 251 of the Code of Criminal Procedure, 1973 (Cr.P.C.) on 15.12005 in answer to which the accused had pleaded not guilty. It appears that the recording of the evidence of the complainant, who appeared as witness on her own behalf (as PW-1), took almost eight years to conclude, the crossexamination being an extensive one, spread over numerous dates. The statement of the accused under Section 313 Cr.P.C. was recorded, on the close heels whereof the petitioner (the complainant) moved an application on 03.03.2017 invoking the jurisdiction of the trial court under Section 311 Cr.P.C. seeking permission to summon one Narender Sharma son of Shri R.S. Sharma as additional witness. The said application was resisted by the accused which was eventually dismissed by Metropolitan Magistrate by order dated 17.08.2017.

(3.) The present petition was filed invoking the inherent power of this court under Section 482 Cr.P.C. challenging the aforesaid order, the prime argument raised being that the examination of the said additional witness is essential for the just decision of the case and denial of such liberty would lead to miscarriage of justice. The petitioner places reliance on Mohanlal Shamjisoni vs. Union of India & Another., (1991) Supp1 SCC 271; Rajendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110; Shailendra Kumar vs. State of Bihar and Others., (2002) 1 SCC 655; P.Chhaganlal Daga vs. M. Sanjay Shaw, (2003) 11 SCC 486; and U.T. of Dadra & Nagar Haveli & Another. vs. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529.