RAKESH KUMAR @ RAKESH THAKUR Vs. VIKRAM SOOD

JUDGEMENT

(1.) By way of instant petition filed under Sec. 482 of the Code of Criminal Procedure, a prayer has been made on behalf of the accused-petitioner (hereinafter referred to as the 'accused') for quashing and setting aside the order dated 17.12.2016 (Annexure P-4) passed by Judicial Magistrate Ist Class, Manali in Complaint No.357-1 of 2012, whereby application having been filed by the accused under Sec. 311 of the Code of Criminal Procedure (for short 'Cr.P.C.') has been dismissed.

(2.) Briefly stated facts, as emerged from the record, are that the respondent-complainant (hereinafter referred to as the 'complainant') instituted a complaint against the accused under Sec. 138 of the Negotiable Instrument Act (for short the 'Act') in the Court of learned Judicial Magistrate Ist Class, Manali, stating therein that the accused allegedly approached complainant on 14.10.2009 and made a request to advance a sum of Rs.19,05,000.00 for expansion of business. Complainant advanced a sum of Rs.19,05,000.00 to the accused, who in lieu of the same issued three cheques in favour of the complainant towards discharge of his liability. However, fact remains that aforesaid cheques were dishonoured, as a result of which, complainant was compelled to initiate proceedings under Sec. 138 of the Act.

(3.) Learned trial Court, taking note of preliminary evidence adduced on record by the complainant, put notice of accusation to the accused under Sec. 138 of the Act, which he pleaded not guilty and claimed trial. It also emerged from the record that complainant examined himself as well as other witnesses in support of the complaint. Thereafter statement of accused was also recorded under Sec. 313 Crimial P.C. on 16.6.2015. Accused, after closure of defence evidence, moved an application under Sec. 311 read with Sec. 91 Crimial P.C. seeking permission of learned trial Court to examine Assessing Officer, Income Tax Commissioner, Mandi Range District Mandi, H.P., (for short AO, ITC, Mandi) as a witness on the premise that the office of Additional Commissioner of Income Tax Mandi Range, District Mandi, issued a show cause notice on 10.5.2016, thereby imposing penalty under Sec. 271-E of Income Tax Act, 1961 upon the accused. The accused, with a view to prove his defence in the complaint instituted by complainant, intended to prove the aforesaid notice issued by AO, ITC, Mandi by examining him as a witness. Accused, by way of application, stated before the Court below that he wants to examine AO, ITC, Mandi, as a witness as he has sent legal notice to the accused regarding the payment of loan amounting to Rs.9,75,000.00 in the relevant Assessment Year 2011-2012, which is quite necessary for the just adjudication of the above titled case as the complainant has submitted before the Commissioner of Income Tax that he has received the aforesaid amount from the accused.