Full Judgment
M.M. Kumar, J
1. This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') challenges order dated 4.9.2003 passed by the Additional Chief Judicial Magistrate, Faridkot allowing the application of the complainant-respondent for summoning Mr. Deep Chand Goyal, Advocate to prove the legal notice. In the complaint filed against the petitioner under Section 138 of the Negotiable Instruments Act, 1881, it has been alleged that on account of a compromise with the complainant-respondent, a sum of Rs. 4,60,000/- was agreed to be paid and the complainant-respondent agreed to withdraw the suit after receiving the payment. As a part performance of the compromise, the accused-petitioner is alleged to have paid by cheque No. SB/51 118589 dated 20.11.1983 an amount of Rs. 2,10,000/-. When the cheque was presented, the same was dischonoured and the complainant-respondent was informed that the funds were insufficient. An endorsement to that effect was made. The complainant-respondent served a notice on the accused-petitioner on 27.12.1993 but all in vain. The carbon copy of the notice and the postal receipts have been attached with the complaint. During the pendency of the complaint, the complainant-respondent filed an application for summoning Mr. Deep Chand Goyal, Advocate to prove the legal notice. The application has been allowed by the Magistrate by holding as under :
'..........the words 'any remaining witnesses for the prosecution' in Section 256, Cr.P.C. do not refer only to those witnesses whose names have been given by the complainant under Sub-section (2) of Section 252 of Cr.P.C. but also includes all such witnesses as may be produced by the complainant in support to the prosecution, even though they have not been summoned or named before framing of the charge and contention taken by the learned Counsel for the applicant have credible force because no prejudice is going to be caused to the respondent-accused who will be given full opportunity to cross-examine the said witness. Moreover, witness can be called or recalled at any stage to prove the act which is necessary to be decided or the proper adjudication of the case and respondent-accused has not been able to refute the assertions of the applicant-complainant, so far as the summoning of witness is concerned. In view, application is allowed. However, decision of this application shall not merit disposal of the complaint. Now complainant is directed to bring his witness on his own responsibility by taking Dasti summon positively on 10.9.2003.'
2. After hearing the learned Counsel, I do not feel persuaded to interfere in the order of the Magistrate because there is ample power under Section 311, Cr.P.C. to call additional witness with the permission of the Court. The Court in its discretion under Section 311, Cr.P.C. would be fully competent to call such an additional witness. Therefore, there is no illegality in the order warranting/interference under Section 401, Cr.P.C. The judgments relied upon by the learned Counsel do not refer to Section 311, Cr.P.C. which clothe theCourt with the power to call the witness at any stage for the just and proper decision of the case.
3. For the reasons recorded above, this petition fails and the same is dismissed.