High Court Punjab-Haryana High Court

M/S Estex Wollen Mills (Pvt.) Ltd vs M.L.Bhatia And Others on 9 March, 2009

Punjab-Haryana High Court
M/S Estex Wollen Mills (Pvt.) Ltd vs M.L.Bhatia And Others on 9 March, 2009
Criminal Misc. M No.18645 of 2008                                                1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH


                                Criminal Misc. M No. 18645 of 2008
                                Date of Decision: March 09, 2009



M/s Estex Wollen Mills (Pvt.) Ltd.                  ...........Petitioner


                               Versus


M.L.Bhatia and others                               ..........Respondents



Coram:       Hon'ble Mrs. Justice Sabina

Present: Mr. Hemant Saini, Advocate for the petitioner.
         Mr.B.C.Bitta,Advocate for the respondent
                           **

Sabina, J.

Petitioner has filed this petition under Section 482 of the

Code of Criminal Procedure, 1973 (`Cr.P.C’ for short) seeking setting aside

of the order dated 9.6.2008 (Annexure P2) passed by the Court of Special

Judicial Magistrate, Amritsar whereby the application for leading

additional evidence by the petitioner for placing on record the judgment of

the Board of Industrial and Financial Reconstruction (BIFR) in a case No.

1365 under Section 138 of the Negotiable Instruments Act,1888

(hereinafter referred to as `the Act’) was dismissed.

Respondent No.1 has filed a complaint under Section 138 of

the Act wherein the petitioner has been arrayed as accused No.2. After

completion of complainant’s evidence, statements of the accused were

recorded under Section 313 Cr.P.C. Thereafter, vide order dated 18.4.2007

defence evidence of the accused was closed by order. On the adjourned

date, an application was filed by the accused seeking permission to lead
Criminal Misc. M No.18645 of 2008 2

additional evidence. The said application was dismissed vide the impugned

order dated 9.6.2008 (Anneuxre P2) by the Special Judicial Magistrate,

Amritsar. Hence the present petition.

Learned counsel for the petitioner has submitted that the

petitioner by way of additional evidence only wants to place on record a

copy of the judgment passed by BIFR. The fact that whether the judgment

is applicable/relevant or not would be considered by the trial Court at the

time of decision of the complaint.

Learned counsel for respondent No.1 has vehemently opposed the

application on the ground that the judgment sought to be placed on record

was not relevant for the decision of the case as the cheque in question was

dated 16.12.2002,whereas, the proceedings for declaring the accused firm as

sick unit were of the year 2004.

Learned counsel for the petitioner, during the course of

arguments, has placed on record the interim orders passed by the trial Court

from time to time. A perusal of the interim orders reveal that the complaint

was presented on 10.6.2003. Thereafter, preliminary evidence was led and

the accused were ordered to be summoned to face trial under Section 138 of

the Act vide order dated 10.1.2004. Complainant closed his evidence on

9.1.2007. Statements of the accused under Section 313 Cr.P.C. were

recorded on 5.3.2007 and the case was adjourned for defence evidence for

14.3.2007. On the said date, last opportunity was granted to the accused to

conclude their evidence on 18.4.2007 and on the said date, the evidence of

the accused was closed by order although the complainant closed his

evidence on 9.1.2007 with regard to the complaint filed on 10.6.2003. The

accused were virtually given only two opportunities to lead their evidence
Criminal Misc. M No.18645 of 2008 3

on the adjourned date i.e. 24.4.2007. Accused filed an application for

leading additional evidence. By way of additional evidence, accused wanted

to prove on record a copy of the judgment passed by BIFR in case No. 1365

titiled as `M.L.Bhatia vs. M/s Estex Woollen Mills’. The relevancy of the

said judgment would be more appropriately gone into and considered at the

time of the decision of the complaint. By disallowing the application for

permission to lead additional evidence and closing the evidence of the

accused by not giving them appropriate opportunity to lead their evidence

amounts to miscarriage of justice so far as accused are concerned.

Accordingly, the order dated 9.6.2008 (Annexure P2) declining

prayer for leading additional evidence is set aside. Consequently, the

application filed by the accused for leading additional evidence is allowed.

(Sabina)
Judge
March 09, 2009
arya