[Cites 21, Cited by 0]
Madhya Pradesh High Court
Rahil Interprises Through Smt Chandan ... vs Investikon Financial Through on 1 April, 2026
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 1 st OF APRIL, 2026
MISC. CRIMINAL CASE No. 3176 of 2026
RAHIL INTERPRISES THROUGH SMT CHANDAN SANGHAVI W/O
ANIL SANGHAVI
Versus
INVESTIKON FINANCIAL THROUGH
Appearance:
Shri Pankaj Khandelwal with Ms Jhanvi Saraf - Advocates for the petitioner.
Shri Akshat Pahadiya - Advocate for the respondent.
ORDER
This petition under section 528 of BNSS, 2023/482 of Cr.P.C. has
been filed feeling aggrieved by the order dated 10.01.2026 passed in SCNIA
No. 48/2020 by the Judicial Magistrate First Class, Jaora, Distt. Ratlam.
2. The exposition of facts, giving rise to the present petition, is as under:
(i) A complaint was filed by the Investicon Financials through its
proprietor- Malay Nahar S/o Vijay Nahar (HUF) against Rahil Enterprise
through Proprietor- Mrs. Chandan Sanghavi before the Judicial Magistrate
First Class, Jaora, Distt. Ratlam stating that the complainant and the accused
were known to each other. An amount of Rs. 33,00,000/- was advanced as
loan to the accused(petitioner herein) by the complainant (respondent
herein), as she was in need of funds for her business. In lieu of the loan, a
duly signed cheque bearing no. 229378 of SBI dated 03.12.2019 was given
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to the complainant by the accused and a receipt dated 12.12.2018 was also
executed by the accused assuring that the cheque amount will be paid. On
03.12.2019, accused requested the complainant not to present cheque for 1-2
days as the amount could not be arranged by her.After waiting for further
reply from the accused, the cheque bearing no. 229378 of SBI dated
03.12.2019 was presented in the account of complainant at SBI, Jawahar
Path, Jaora on 05.12.2019 which was dishonoured due to 'insufficient fund'.
A statutory demand notice was sent to through Advocate on 09.12.2019.
Thereafter, the complaint for offence punishable under Section 420 of IPC
and Section 138 of Negotiable Instrument Act,1881 was filed.
(ii) The Judicial Magistrate First Class,Jaora took cognizance of offence
punishableSection 138 of Negotiable Instruments Act, 1881 against accused/
petitioner.
(iii) On conclusion of trial, when the matter was reserved for passing of
final judgment, an application was filed by the complainant/respondent under
Section 311 of Cr.P.C. proposing certain documents and for recalling of
witness i.e. the complainant Malay Nahar and examination ofthe Chartered
Accountant, Deepesh Jain. The complainant filed another application under
Section138 of the Negotiable Instruments Actfor permission to file bank
certificate regarding transfer of loan amount in the account of accused.The
trial Court allowed the applications vide impugned order dated 10.01.2026.
3. Learned counsel for petitioner, in addition to the grounds mentioned in
the petition contends that at the inception of the trial or at the time of
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determination of interim compensation u/S. 143(A) of the Negotiable
Instrument Act(for short referred to as 'N.I. Act' hereinafter), the petitioner
has categorically raised the defence that he has paid the amount of Rs. 30
lakhs in the account of the complainant. The petitioner had filed application
u/S 91 of Cr.P.C. and Section 94 of BNSS, 2023 demanding filing of bank
accounts, income tax return and other documents relevant to the transaction.
Thereafter, the trial concluded and final arguments were heard.The case was
fixed for judgment. Meanwhile, the complainant filed the application u/S.
311 of Cr.P.C. requesting to examine himself and the Chartered Accountant
to fill up the lacuna which is pointed out in the written submissions filed by
the accused in the final arguments. The learned counsel further referring to
the evidence of the complainant submits that the complainant is the
Proprietor and the account holder of both the firms.The amount of Rs. 30
lakhs was deposited in the account of complainant on the same day i.e.
12.12.20218 by the accused. It shows that the accused has received the
amount of impugned cheque which was allegedly given as loan to him.
There was no need for any further clarification in the matter. Learned trial
Court committed error in allowing the application u/S 311 of Cr.P.C. and
permitting the complainant to produce additional oral and documentary
evidence. Learned counsel relied upon the law laid down in cases of Swapan
Kumar Chatterjee Vs. CBI reported in 2019 INSC 11and Ratanlal Vs. Prahad
Jat reported in 2017 (9) SCC 340 to buttress his contentions.
4. Per contra, learned counsel for the respondent/complainant contends
that the loan of Rs. 30 lakhs was extended to the accused (petitioner) from
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Investicon Financials through its Proprietor Malay Nahar, who was
representing a HUF in the account no. 38029626138 at SBI, Jaora. The
cheque in question was issued for repayment of this loan. WhereasInvesticon
Financials, Proprietor Malay Nahar in individual capacity has advanced loan
of Rs. 25 lakhs on 31.12.2019 to the accused through cheque drawn on
Account No. 33307721158. The accused has remitted the loan vide cheque
dated 12.12.2018. The transactions are entirely different. Therefore, in order
to remove any doubt and to seek clarification, the trial Court has exercised its
power under the second limb of Section 311 of Cr.P.C to recall the
complainant and permitted him to submit the relevant documents. Learned
counsel referred to the cross-examination para 13-16 to substantiate his
contention that the holder ofboth the account involved in the transaction, is
although the same person, but he has represented the firm in different
capacities. Therefore, both the accounts were held in different legal
capacities. Learned counsel further submits that the trial Court committed no
error in allowing the application u/S 311 of Cr.P.C. in exercise of its
discretion. Learned counsel relied on the judgment of Varsha Garg Vs State
of Madhya Pradeshreported in 2023 Livelaw SC 662 to buttress his
contentions.
5. Heard, learned counsel for both the parties and perused the record.
6. In cases of Swapan Kumar Chatterjee and Ratanlal(supra) reported in
2017 (9) SCC 340, it was held that the p ower conferred under section 311
should be invoked by the court only to meet the ends of justice.The power is
to be exercised only for strong and valid reasons and it should be exercised
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with great caution and circumspection.The court has wide power under this
section to even recall witnesses for re-examination or further examination,
necessary in the interest of justice but same must be exercised after taking
into consideration the facts and circumstances of each case.The recall of
witness is not a matter of course and the discretion given to court has to be
exercise judicially to prevent failure of justice. Where the prosecution
evidence has been closed long back and the reasons for non-examination of
witness earlier is not satisfactory, the summoning of the witness at the
belated stage would cause great prejudice to the accused and should not be
allowed.
7. The Supreme Court in the case of Rajaram Prasad Yadav Vs. State of
Bihar reported in AIR 2013 SC 3081 laid down general principles for
consideration of application under Section 311 of Cr.P.C. read with Section
138 of Negotiable Instruments Act as under:-
23. From a conspectus consideration of the above decisions, while dealing with
an application under Section 311 Cr.P.C. read along with 138 of the Negotiable
Instruments Act, we feel the following principles will have to be borne in mind
by the Courts:
(a) Whether the Court is right in thinking that the new evidence is needed by it?
Whether the evidence sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
(b) The exercise of the widest discretionary power under Section 311 Cr.P.C.
should ensure that the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby the ends of justice
would be defeated.
(c) If evidence of any witness appears to the Court to be essential to the just
decision of the case, it is the power of the Court to summon and examine or
recall and re-examine any such person.
(d) The exercise of power under Section 311 Cr.P.C. should be resorted to only
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with the object of finding out the truth or obtaining proper proof for such facts,
which will lead to a just and correct decision of the case.
(e) The exercise of the said power cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing serious
prejudice to the accused, resulting in miscarriage of justice.
(f) The wide discretionary power should be exercised judiciously and not
arbitrarily.
(g) The Court must satisfy itself that it was in every respect essential to examine
such a witness or to recall him for further examination in order to arrive at a just
decision of the case.
(h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the
Court to determine the truth and to render a just decision.
(i) The Court arrives at the conclusion that additional evidence is necessary, not
because it would be impossible to pronounce the judgment without it, but
because there would be a failure of justice without such evidence being
considered.
(j) Exigency of the situation, fair play and good sense should be the safe guard,
while exercising the discretion. The Court should bear in mind that no party in
a trial can be foreclosed from correcting errors and that if proper evidence was
not adduced or a relevant material was not brought on record due to any
inadvertence, the Court should be magnanimous in permitting such mistakes to
be rectified.
(k) The Court should be conscious of the position that after all the trial is
basically for the prisoners and the Court should afford an opportunity to them
in the fairest manner possible. In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity rather than protecting the
prosecution against possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise of such a discretionary
power, may lead to undesirable results.
(l) The additional evidence must not be received as a disguise or to change the
nature of the case against any of the party.
(m) The power must be exercised keeping in mind that the evidence that is
likely to be tendered, would be germane to the issue involved and also ensure
that an opportunity of rebuttal is given to the other party.
(n) The power under Section 311 Cr.P.C. must therefore, be invoked by the
Court only in order to meet the ends of justice for strong and valid reasons and
the same must be exercised with care, caution and circumspection. The Court
should bear in mind that fair trial entails the interest of the accused, the victim
and the society and, therefore, the grant of fair and proper opportunities to the
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persons concerned, must be ensured being a constitutional goal, as well as a
human right.
8. In matter of Varsha Garg (supra), examining applicability of Section
311 of Cr.P.C at the end of trial, it was held that-
31. Having clarified that the bar under Section 301 is inapplicable and that the
appellant is well placed to pursue this appeal, we now examine Section 311 of
CrPC. Section 311 provides that the court "may":
(i) Summon any person as a witness or to examine any person in attendance,
though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.
This power can be exercised at any stage of any inquiry, trial or other proceeding
under the CrPC. The latter part of Section 311 states that the court "shall" summon
and examine or recall and re-examine any such person "if his evidence appears to
the court to be essential to the just decision of the case". Section 311 contains a
power upon the court in broad terms. The statutory provision must be read
purposively, to achieve the intent of the statute to aid in the discovery of truth.
32. The first part of the statutory provision which uses the expression "may"
postulates that the power can be exercised at any stage of an inquiry, trial or other
proceeding. The latter part of the provision mandates the recall of a witness by the
court as it uses the expression "shall summon and examine or recall and re-examine
any such person if his evidence appears to it to be essential to the just decision of
the case". Essentiality of the evidence of the person who is to be examined coupled
with the need for the just decision of the case constitute the touchstone which must
guide the decision of the court. The first part of the statutory provision is
discretionary while the latter part is obligatory.
33. A two-Judge Bench of this Court in Mohanlal Shamji Soni v. Union of India,
1991 Supp (1) SCC 271 while dealing with parimateria provisions of Section 540 of
the Criminal Code of Procedure, 1898 observed :
"16. The second part of Section 540 as pointed out albeit imposes upon the
court an obligation of summoning or recalling and re-examining any witness
and the only condition prescribed is that the evidence sought to be obtained
must be essential to the just decision of the case. When any party to the
proceedings points out the desirability of some evidence being taken, then
the court has to exercise its power under this provision -- either
discretionary or mandatory -- depending on the facts and circumstances of
each case, having in view that the most paramount principle underlying this
provision is to discover or to obtain proper proof of relevant facts in order to
meet the requirements of justice."
34. S. Ratnavel Pandian, J. speaking for the two-Judge Bench, noted that the power
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is couched in the widest possible terms and calls for no limitation, either with regard
to the stage at which it can be exercised or the manner of its exercise. It is only
circumscribed by the principle that the "evidence to be obtained should appear to
the court essential to a just decision of the case by getting at the truth by all lawful
means". In that context the Court observed :
"18. ... Therefore, it should be borne in mind that the aid of the section
should be invoked only with the object of discovering relevant facts or
obtaining proper proof of such facts for a just decision of the case and it
must be used judicially and not capriciously or arbitrarily because any
improper or capricious exercise of the power may lead to undesirable
results. Further it is incumbent that due care should be taken by the court
while exercising the power under this section and it should not be used for
filling up the lacuna left by the prosecution or by the defence or to the
disadvantage of the accused or to cause serious prejudice to the defence of
the accused or to give an unfair advantage to the rival side and further the
additional evidence should not be received as a disguise for a retrial or to
change the nature of the case against either of the parties."
35. Summing up the position as it obtained from various decisions of this Court,
namely, Rameshwar Dayal v. State of U.P. , (1978) 2 SCC 518, State of
W.B. v. Tulsidas Mundhra , 1962 SCC OnLine SC 413 : 1963 Supp (1) SCR 1,
Jamatraj Kewalji Govani v. State of Maharashtra, 1967 SCC OnLine SC 19 : (1967)
3 SCR 415 : AIR 1968 SC 178, Masalti v. State of U.P. , 1964 SCC OnLine SC 30 :
(1964) 8 SCR 133 : AIR 1965 SC 202, Rajeswar Prasad Misra v. State of W.B. ,
1965 SCC OnLine SC 122 : (1966) 1 SCR 178 : AIR 1965 SC 1887] and Ratilal
Bhanji Mithani v. State of Maharashtra, (1971) 1 SCC 523 : 1971 SCC (Cri) 231],
the Court held :
"27. The principle of law that emerges from the views expressed by this
Court in the above decisions is that the criminal court has ample power to
summon any person as a witness or recall and re-examine any such person
even if the evidence on both sides is closed and the jurisdiction of the court
must obviously be dictated by exigency of the situation, and fair play and
good sense appear to be the only safe guides and that only the requirements
of justice command the examination of any person which would depend on
the facts and circumstances of each case."
36. The power of the court is not constrained by the closure of evidence. Therefore,
it is amply clear from the above discussion that the broad powers under Section 311
are to be governed by the requirement of justice. The power must be exercised
wherever the court finds that any evidence is essential for the just decision of the
case. The statutory provision goes to emphasise that the court is not a hapless
bystander in the derailment of justice. Quite to the contrary, the court has a vital role
to discharge in ensuring that the cause of discovering truth as an aid in the
realisation of justice is manifest.
43. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3
SCC 374, which was more recently reiterated in Godrej Pacific Tech.
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Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, the Court specifically dealt
with this objection and observed that the resultant filling of loopholes on account of
allowing an application under Section 311 is merely a subsidiary factor and the
court's determination of the application should only be based on the test of the
essentiality of the evidence. It noted that :
"28. ... The court is not empowered under the provisions of the Code to
compel either the prosecution or the defence to examine any particular
witness or witnesses on their side. This must be left to the parties. But in
weighing the evidence, the court can take note of the fact that the best
available evidence has not been given, and can draw an adverse inference.
The court will often have to depend on intercepted allegations made by the
parties, or on inconclusive inference from facts elicited in the evidence. In
such cases, the court has to act under the second part of the
section. Sometimes the examination of witnesses as directed by the court
may result in what is thought to be "filling of loopholes". That is purely a
subsidiary factor and cannot be taken into account. Whether the new
evidence is essential or not must of course depend on the facts of each case,
and has to be determined by the Presiding Judge."(emphasis supplied)
44. The right of the accused to a fair trial is constitutionally protected under Article
21. However, in Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173, while
reiterating Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, the Court observed
that it is the duty of the criminal court to allow the prosecution to correct an error in
interest of justice. In Rajendra Prasad , the Court had held that :
"8. Lacuna in the prosecution must be understood as the inherent weakness
or a latent wedge in the matrix of the prosecution case. The advantage of it
should normally go to the accused in the trial of the case, but an oversight in
the management of the prosecution cannot be treated as irreparable
lacuna. No party in a trial can be foreclosed from correcting errors. If proper
evidence was not adduced or a relevant material was not brought on record
due to any inadvertence, the court should be magnanimous in permitting
such mistakes to be rectified. After all, function of the criminal court is
administration of criminal justice and not to count errors committed by the
parties or to find out and declare who among the parties performed better."
(emphasis supplied)
46.Finally, we also briefly deal with the objection of the respondents regarding the
stage at which the application under Section 311 was filed. The respondents have
placed reliance on Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328, a two-
Judge Bench decision of this Court, to argue that the application should not be
allowed as it has been made at a belated stage. The Court in Swapan
Kumar observed :
"11. It is well settled that the power conferred under Section 311 should be
invoked by the court only to meet the ends of justice. The power is to be
exercised only for strong and valid reasons and it should be exercised with
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great caution and circumspection. The court has wide power under this
Section to even recall witnesses for re-examination or further examination,
necessary in the interest of justice, but the same has to be exercised after
taking into consideration the facts and circumstances of each case. The
power under this provision shall not be exercised if the court is of the view
that the application has been filed as an abuse of the process of law.
12. Where the prosecution evidence has been closed long back and the
reasons for non-examination of the witness earlier are not satisfactory, the
summoning of the witness at belated stage would cause great prejudice to
the accused and should not be allowed. Similarly, the court should not
encourage the filing of successive applications for recall of a witness under
this provision."
*********
48. The court is vested with a broad and wholesome power, in terms of Section
311CrPC, to summon and examine or recall and re-examine any material witness at
any stage and the closing of prosecution evidence is not an absolute bar. This Court
i n Zahira Habibulla H. Sheikh while dealing with the prayers for adducing
additional evidence under Section 391CrPC at the appellate stage, along with a
prayer for examination of witnesses under Section 311CrPC explained the role of
the court, in the following terms :
"43. The courts have to take a participatory role in a trial. They are not
expected to be tape recorders to record whatever is being stated by the
witnesses. Section 311 of the Code and Section 165 of the Evidence Act
confer vast and wide powers on presiding officers of court to elicit all
necessary materials by playing an active role in the evidence-collecting
process. They have to monitor the proceedings in aid of justice in a manner
that something, which is not relevant, is not unnecessarily brought into
record. Even if the prosecutor is remiss in some ways, it can control the
proceedings effectively so that the ultimate objective i.e. truth is arrived at.
This becomes more necessary where the court has reasons to believe that the
prosecuting agency or the prosecutor is not acting in the requisite manner.
The court cannot afford to be wishfully or pretend to be blissfully ignorant or
oblivious to such serious pitfalls or dereliction of duty on the part of the
prosecuting agency. The prosecutor who does not act fairly and acts more
like a counsel for the defence is a liability to the fair judicial system, and
courts could not also play into the hands of such prosecuting agency
showing indifference or adopting an attitude of total aloofness."(emphasis
supplied)
49. Further, in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374,
the Court reiterated the extent of powers under Section 311 and held that :
"27. The object underlying Section 311 of the Code is that there may not be
failure of justice on account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity in the statements of the
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witnesses examined from either side. The determinative factor is whether it
is essential to the just decision of the case. The section is not limited only for
the benefit of the accused, and it will not be an improper exercise of the
powers of the court to summon a witness under the section merely because
the evidence supports the case of the prosecution and not that of the
accused. The section is a general section which applies to all proceedings,
enquiries and trials under the Code and empowers the Magistrate to issue
summons to any witness at any stage of such proceedings, trial or enquiry. In
Section 311 the significant expression that occurs is 'at any stage of any
inquiry or trial or other proceeding under this Code'. It is, however, to be
borne in mind that whereas the section confers a very wide power on the
court on summoning witnesses, the discretion conferred is to be exercised
judiciously, as the wider the power the greater is the necessity for
application of judicial mind."(emphasis supplied)
50. The Court while reiterating the principle enunciated in Mohanlal Shamji
Soni v. Union of India, 1991 Supp (1) SCC 271 stressed upon the wide ambit of
Section 311 which allows the power to be exercised at any stage and held that :
"44. The power of the court under Section 165 of the Evidence Act is in a
way complementary to its power under Section 311 of the Code. The section
consists of two parts i.e. : (i) giving a discretion to the court to examine the
witness at any stage, and (ii) the mandatory portion which compels the court
to examine a witness if his evidence appears to be essential to the just
decision of the court. Though the discretion given to the court is very wide,
the very width requires a corresponding caution. In Mohanlal Shamji
Soni v. Union of India [Mohanlal Shamji Soni v. Union of India, 1991 Supp
(1) SCC 271 : 1991 SCC (Cri) 595] this Court has observed, while
considering the scope and ambit of Section 311, that the very usage of the
words such as, "any court", "at any stage", or "any enquiry or trial or other
proceedings", "any person" and "any such person" clearly spells out that the
section has expressed in the widest-possible terms and do not limit the
discretion of the court in any way. However, as noted above, the very width
requires a corresponding caution that the discretionary powers should be
invoked as the exigencies of justice require and exercised judicially with
circumspection and consistently with the provisions of the Code. The second
part of the section does not allow any discretion but obligates and binds the
court to take necessary steps if the fresh evidence to be obtained is essential
to the just decision of the case, "essential" to an active and alert mind and
not to one which is bent to abandon or abdicate. Object of the section is to
enable the court to arrive at the truth irrespective of the fact that the
prosecution or the defence has failed to produce some evidence which
is necessary for a just and proper disposal of the case. The power is
exercised and the evidence is examined neither to help the prosecution nor
the defence, if the court feels that there is necessity to act in terms of Section
311 but only to subserve the cause of justice and public interest. It is done
with an object of getting the evidence in aid of a just decision and to uphold
the truth."(emphasis supplied)
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9. The material on record is examined in the light of aforestated
proposition of law.
10. The complaint in present matter was filed by M/s Investicon
Financials through its proprietor- Malay Nahar S/o Vijay Nahar (HUF)
against M/s Rahil Enterprise through Proprietor- Mrs. Chandan Sanghavi for
dishonor of cheque issued for payment of Rs. 33,00,000/- advanced as loan
by the complainant. The accused raised the defense that on the same day i.e
12.12.2018,she had paid Rs. 33,00,000/- in the Account no. 33307721158 of
the complainant Malay Nahar. It was not a loan transaction but a transaction
of settlement of account.
11. The complainant attempted to explain that the account no.
38029626138and the account no. 33307721158 are operated by him but in
different capacities. The account no.38029626138relates to M/s Investicon
Financials through its proprietor- Malay Nahar S/o Vijay Nahar
(HUF)whereas,the other account no. 3307721158 relates to M/s Investicon
Financials through its proprietor- Malay Nahar.
12. Santosh Verma (PW2) Branch manager of SBI, Branch Telephone
exchange, Jaorastated that the holder of account no.38029626138is
proprietor MalayNahar HUF whereas the amount of Rs. 8,00,000/- through
cheque no. 229379 and amount of Rs. 25,00,000/- through cheque no.
229328 was deposited in the account no. 33307721158 of M/s Investicon
Financials through its proprietor- Malay Nahar.
13. Malay Nahar (PW1) in cross examination para 13 to 16 stated that the
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amount of Rs. 8,00,000/- and 25,00,000/- paid by accused on 12.12.2018
relate to other old transaction with another firm.The veracity of this
statement would be determined on the basis of evidence before the trial
court.
14. Thus, the material on record indicates that an amount of Rs.
33,00,000/- was transferred into account number 6300058600 of M/s Rahil
Enterprises on 12.12.2018 from Account number 38029626138 ofM/s
Investicon Financials through its proprietor- Malay Nahar S/o Vijay Nahar
(HUF), the complainant.M/s Rahil Enterprises paid the amount of Rs.
8,00,000/- through cheque no. 229379 and amount of Rs. 25,00,000/-
through cheque no. 229328 in the account no. 33307721158 of M/s
Investicon Financials through its proprietor- Malay Nahar on the same day
i.e. on 12.12.2018. Apparently, the amount was not paid into same account.
15. The question,whether the accused had remitted the amount of Rs.
33,00,000/- on the same day towards the same transaction in another account
of the complainant or whether the deposit of Rs. 33,00,000/- into other
account of MalayNahar relates to other distinct transaction, would be
determined on appreciation of evidence and overall circumstances revealed
by the material on record.
16. The trial court, in order to clarify the inconsistency regarding payment
of Rs. 33,00,000 into other account of Malay Nahar and considering the
circumstances reflected by the material on record, concluded that proposed
evidence is proper for just and complete adjudication of the dispute between
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the parties. The exercise of discretion by the trial Court cannot be said to be
arbitrary or without application of mind. The petitioner/ accused will have
opportunity to controvert the proposed evidence and to rebut it by proposing
defence evidence. Hence, no substantial prejudice would be caused to the
accused. The mention of defence evidence by complainant, in the last para of
impugned order, seems to be a clerical mistake. It deserves to be ignored.
17. In view of above discussion, this court is of considered opinion that
learned trial Court did not commit error in allowing the application under
Section 311 of Cr.P.C. and permitting the complainant to propose additional
evidence. The impugned order does not suffer from any manifest impropriety
or material irregularity.
18. Consequently, no case is made out for interference in exercise of
inherent jurisdiction under Section 528 of BNSS, 2023/482 Cr.P.C. The
petition being meritless, is dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
sh
