IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.106 of 2025 Date of Decision: 15.06.2025 _______________________________________________________ Sanjay Kumar …….Petitioner Versus Surjeet Singh … Respondent _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner : Ms. Sakshi Thakur, Advocate vice Mr. Vivek Singh Attri, Advocate. For the Respondent: Mr. Hemant Kumar Thakur, Advocate. _______________________________________________________ Sandeep Sharma, Judge(oral): Petitioner herein, who is a complainant in the proceedings instituted under Section 138 of the Negotiable Instruments Act, is aggrieved of order dated 18.12.2024, passed by learned Judicial Magistrate, Court No.2, Paonta Sahib, District Sirmour, Himachal Pradesh, whereby an application under Section 311 Cr.P.C filed by the respondent-accused (hereinafter referred to as the accused) for examining the bank Clerk of PNB, Branch Paonta Sahib and son of the accused, came to be allowed. 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Ms. Sakshi Thakur, learned counsel for the petitioner, is that no plausible 1Whether the reporters of the local papers may be allowed to see the judgment? 2 reasoning has been assigned by the Court below, while allowing the application under Section 311 Cr.P.C filed at the behest of the accused, rather Court below, merely taking note of the submissions made by the learned counsel for the parties to the lis, proceeded to allow the application. While making this Court peruse application filed under Section 311 Cr.P.C vis-à-vis reasoning assigned in the impugned order, learned counsel for the petitioner states that learned Court below has not bothered at all to ascertain the essentiality of recording the statements of the proposed witnesses. She states that ample opportunity was afforded to the accused by Court below to lead evidence and ultimately evidence of the accused was closed by Court order. She further states that since order passed by the Court below thereby closing the defence of the accused never came to be laid challenge in the appropriate Court of law, there was no occasion, if any, for the Court below to allow the application filed by the accused under Section 311 Cr.P.C. 3. To the contrary, learned counsel for the accused, while stating that there is no illegality or infirmity in the impugned order, states that no prejudice otherwise can be said to have been caused to either of the parties in case, accused is permitted to lead evidence, rather that would enable the Court below to adjudicate the case in most effective manner. He states that since document with regard to payment of amount being claimed by the complainant through cheque 3 in question was not in possession of the accused at the time of cross- examination of the complainant, coupled with the fact that during the pendency of the complaint some amount came to be paid by the son of the accused to the complainant, no illegality can be said to have been committed by the Court below, while accepting the prayer made on behalf of the petitioner for examination of the bank official as well as son of the accused. 4. Having heard learned counsel for the parties and perused the material adduced on record vis-à-vis reasoning assigned in the impugned order, this Court has no hesitation to conclude that there is no application of mind by Court concerned, rather it simply having taken note of the pleadings adduced on record by the respective parties, proceeded to allow the application. There is no whisper that for what reasons application filed by the accused under Section 311 Cr.P.C deserves to be allowed. 5. Interestingly, Court below, after having taken note of pleadings as well as oral submission made at the behest of the parties to the lis, proceeded to allow the application. Had the Court below bothered to look into the averments contained in the application filed under Section 311 Cr.P.C vis-à-vis averments contained in the complaint filed at the behest of the complainant, it would not have proceeded to pass the order impugned in the instant proceedings. Complaint filed at the behest of the complainant reveals that amount 4 otherwise sought to be claimed through cheque in question was paid in the year 2020, whereas respondent by way of filing application under Section 311 Cr.P.C., has attempted to set up a case that amount, sought to be claimed through cheque in question, stood paid in the year, 2017. Moreover, this Court finds that accused has already set up a defence that he has paid the entire amount, as is being claimed through cheque. There is no explanation in the application that for what reasons accused failed to plead or set up a defence, which otherwise came to be set up by him in the application filed under Section 311 Cr.P.C., at the time of his cross-examining the complainant. 6. Impugned order itself reveals that repeated opportunities were granted to the accused to lead evidence, but once he failed to do so, Court closed the defence evidence of the accused by Court order. Order passed by the Court below never came to be laid challenge in the appropriate proceedings and as such, Court below otherwise ought not have entertained application under Section 311 Cr.P.C filed at the behest of the accused. 7. No doubt, application under Section 311 Cr.P.C can be filed at any stage of trial, but while doing so, applicant is required to show that for reasons beyond his control, he was unable to produce on record the material evidence at the time of his cross-examining the complainant or his witnesses. In the instant case, Court below failed 5 to ascertain the essentiality/requirement, if any, of evidence otherwise proposed to be adduced on record by way of additional evidence under Section 311 Cr.P.C. Since complaint reveals that amount, sought to be realized through cheque in question, was paid in the year 2020, no fruitful purpose otherwise would be served in case accused is permitted to place on record documents, suggestive of the fact that he had returned some amount to the complainant in the year, 2017. Moreover, as has been observed hereinabove, accused has already set up a defence that he had returned the entire amount. 8. Leaving everything aside, this Court is persuaded to agree with learned counsel for the petitioner that order laid challenge in the instant proceedings is non-speaking and as such, same is not sustainable in the eyes of law. 9. Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed. Impugned order dated 18.12.2024, passed in Cr.M.A. No.1272 of 2024, is quashed and set-aside and parties to the lis are directed through their respective counsel to remain present before the Court below on 15.07.2026, enabling it to proceed with the matter. Interim order, if any, is vacated. Record of learned Court below be sent back forthwith. Pending applications, if any, also stands disposed of. 10. (Sandeep Sharma), Judge June 15, 2026 (shankar)