JANESHWAR DUTT Vs. SANJIV KUMAR

JUDGEMENT

(1.) THIS petition under Section 482 Cr.P.C. has been filed for quashing of the order dated June 7, 2006 (P-9) passed by Sub-Divisional Judicial Magistrate, Malerkotla, dismissing an application of the petitioner under Section 311 Cr.P.C. for recalling Janeshwar Dutt, complainant-witness No. 2 for the purpose of exhibiting the original cheque No. 741298 dated February 25, 2002 and memo dated August 14, 2002 on the ground that the application has been moved after a gap of two years and the complainant- petitioner wants to fill in the lacuna in the complaint case under Section 138 of the Negotiable Instruments Act filed by him. The said complaint admittedly is still pending for the evidence of the complainant.

(2.) COUNSEL for the petitioner has submitted that in the present case the cheque No. 741298 dated February 25, 2002 for a sum of Rs. 2 lacs drawn on State Bank of Patiala was produced on the record while leading preliminary evidence in the form of affidavit (Annexure P-2) at pre-notice accusation stage and that inadvertently, while appearing as a witness after notice of accusation, the said cheque and the memo regarding return of the cheque as dishonoured on presentation could not be exhibited. Copy of the statement of the petitioner as Annexure P-3 and the statement of Kuldip Singh, Clerk-cum- cashier, Punjab National Bank as Annexure P-4 in the form of affidavit has been produced wherein it is specifically stated on oath that cheque No. 741298 dated February 25, 2002 was deposited by the petitioner-complainant in his account and it was returned on August 16, 2002 with remarks "insufficient funds".

(3.) I have considered the facts and circumstances of this case. A perusal of the statement of Janeshwar Dutt Annexure P-2 made in the Court at the pre- notice accusation stage and his subsequent statement Annexure P-3 read with statement of the Bank official Annexure P-4 makes it clear it clear that it was an oversight on the part of the complainant or his counsel to get the cheque and memo proved and exhibited on the record. It is not a case where the petitioner was making an attempt to fill in the lacuna but it was merely a fallout of an oversight committed by the counsel conducting the case. The order dated June 7, 2006 (P-9) dismissing the application under Section 311 Cr.P.C., if seen in context to the spirit of Section 311 Cr.P.C., is not sustainable especially when the matter is still pending for the complainant's evidence.