- (1.) The instant criminal misc. Petition under Section 482 of Code of Criminal Procedure has been filed by the Petitioner against the order of learned Metropolitan Magistrate No.9, Jodhpur Metropolitan dated 04.2.2019 whereby the application filed by the petitioner under Section 311 Cr.P.C has been rejected.
(2.) Counsel for the petitioner submits that the petitioner wants to prove the original copies of the documents mentioned in the application and it can be proved by calling the representative/partner of the company before the court. Earlier also, the petitioner had filed an application under Section 311 Cr.P.C. before the trial court and same was dismissed against which the petitioner filed S.B. Criminal Misc. Petition No. 1622/2018 which was decided by this Court on 18.09.218 with following observations:- "In light of such observations, the present petitions are partly allowed and while quashing and setting aside the impugned order dated 17.01.2018 passed by learned Metropolitan Magistrate No.9, Jodhpur Metropolitan, the matter is remanded back to the learned court below with a direction to re-examine the matter after carefully perusing the documents annexed with the application. However, if the learned court below allows the application under Section 311 Cr.P.C. then the learned court below shall give an opportunity to the respondent to lead appropriate evidence regarding the document in question. It is made clear that the impugned order dated 05.07.2018 closing the defence evidence shall not preclude the learned court below to give aforesaid opportunity to the respondent to lead appropriate evidence regarding the documents in question, in case, the application under Section 311 Cr.P.C. is allowed by the learned court below." It is argued that in pursuance of aforesaid order, the trial court heard the petitioner on application under Section 311 Cr.P.C but again rejected the same without assigning any cogent reason by observing that the petitioner only wants to delay the matter. Learned Counsel submits that if the said witness is not called in evidence, it would tantamount to denying fair opportunity of defence to the Petitioner. In these circumstances, the application under Section 311 Cr.P.C. may be allowed.
(3.) Per contra, learned counsel for the respondent opposed the misc. petition and argued that petitioner has been purposely delaying completion of trial. The matter is pending since 2011 and this application under Section 311 Cr.P.C has been submitted by the petitioner in the year 2017. In the order passed by the trial court, it has been clearly mentioned that on 16.05.2017, the counsel for the petitioner completed the cross-examination while reserving the cross-examination for documents. Later on, cross- examination was concluded. Thereafter, the statement of accused was recorded on 31.08.2017 and matter was fixed for defence evidence on 11.09.2017 and on that day, petitioner filed the application under Section 311 Cr.P.C. The said application was decided on 17.1.2018 and matter was fixed for defence evidence but no defence evidence was produced upto 05.07.2018 and on that day, the defence evidence was closed and matter was fixed for final arguments. In these circumstances, the trial Court was justified in rejecting the application filed by the petitioner and therefore, the misc petition may be dismissed.;