HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 7445/2024 Banshidhar S/o Hanuman Sahay, Aged About 40 Years, R/o Village Ramchandrapura, Tehsile Sanganer, District Jaipur. ----Petitioner Versus 1. State Of Rajasthan, Through Public Prosecutor. 2. Devilal S/o Shree Mohru Ji Jaat, Aged About 65 Years, R/o Sherawato Ki Dhani, Gram Post Mahapura Tehsile Sanganer, District Jaipur, Police Station Bhankrota, Jaipur. ----Respondents For Petitioner(s) : Mr. Vishal Pareek For Respondent(s) : Mr. Vivek Choudhary, PP JUSTICE ANOOP KUMAR DHAND Order 21/01/2025 1. The instant criminal misc. petition has been preferred against the impugned order dated 04.09.2024 passed by Special Judicial Magistrate, NI Act Case, No.4, Jaipur Metropolitan-II by which the application filed by the petitioner under Section 311 Cr.P.C. for summoning the defence witness DW-2, Bhagwan Sahay and DW-3, Lallu Ram was dismissed. 2. Learned counsel for the petitioner submits that the petitioner is facing trial for the offence under Section 138 of the Negotiable Instruments Act (for short 'NI Act'), before the Trial Court. Counsel submits that the petitioner wanted to produce defence evidence of two witnesses i.e. DW-2, (2 of 4) [CRLMP-7445/2024] Bhagwan Sahay and DW-3, Lallu Ram and their examination-in-chief was recorded on 07.01.2020. Counsel submits that their cross-examination could not be conducted by the complainant and in the meantime, the case was posted and certain applications were submitted. Counsel submits that time has taken place in disposal of the said applications, thereafter, one witness Lallu Ram appeared before the Trial Court on 21.04.2023, but on that day, the Presiding Officer was on leave, hence, under these circumstances, this witness was bound down to appear on the next date, but on the next date, certain application was filed, hence, his cross-examination could not be conducted and finally defence evidence of the petitioner was closed. Counsel submits that the evidence of these two witnesses are material for just decision of the case, that is why, they were produced before the Trial Court in defence as DW-2 and DW-3 and even their examination-in-chief was recorded. Counsel submits that unless and until these witnesses are cross-examined by the complainant, their evidence has no bearing, therefore, under these circumstances, last opportunity be granted to the petitioner to produce these two witnesses for the purpose of cross- examination, subject to payment of cost of suitable cost to the complainant. 3. Heard and considered the submissions made at Bar and perused the material available on the record. 4. This fact is not in dispute that the petitioner is facing trial for the offence under Section 138 of the NI Act since (3 of 4) [CRLMP-7445/2024] 2017. This fact is also not in dispute that the examination- in-chief of these two witnesses namely DW-2 Bhagwan Sahay and DW-3 Lallu Ram was recorded on 07.01.2020. This fact is also not in dispute that their cross-examination was not conducted because of one reason or another and the case was deferred from one date to another and in the meantime, the defence evidence of the petitioner was closed. It is also an undisputed that the petitioner was negligent in producing these witnesses before the Trial Court on the dates posted, but this fact cannot be overlooked that in order to conduct a fair trial against any accused, some reasonable opportunity is required to be given to him to produce his evidence. 5. In view of the above, the impugned order dated 04.09.2024 stands quashed and set aside. The Trial Court is directed to re-summon these two witnesses on the next date and the complainant be permitted to cross-examine these two witnesses, subject to payment of cost of Rs.20,000/- to the complainant. 6. In case, the cost amount is not paid by the petitioner to the complainant before the next date and in case, the petitioner fails to produce these two witnesses namely DW-2 Bhagwan Sahay and DW-3 Lallu Ram for their cross- examination on the next date, no further opportunity would be granted to the petitioner for the aforesaid purpose. 7. In case, the Trial Court feels any difficulty in recording their cross-examination on one day, a short date be fixed for (4 of 4) [CRLMP-7445/2024] the aforesaid purpose and all possible endeavour be made to decide the complaint, expeditiously, as early as possible. 8. This order is passed by this Court without issuing notice to the complainant looking to the fact that the complaint is pending before the Trial Court since 2017 and summoning of the complainant would further cause delay in disposal of the complaint filed by him. Even if, the complainant feels aggrieved by this order, then he would be at liberty to move application for recall of this order. 9. With the aforesaid observations, the instant criminal misc. petition stands disposed of. The stay application and all pending applications, if any, stand disposed of. (ANOOP KUMAR DHAND),J KuD/121