Order 14

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 61 CC NI ACT / 4731/2024
Surender Kumar Jain Vs. Vikash Agarwal
23.07.2026
Present: 	Mr. Sunil Goyal, Ld. Counsel for complainant with complainant.
Mr. Sanjay Gupta and Ms. Shahjahan, Ld. Counsels for accused with
accused.
Matter is listed for reply and arguments on the application filed by the
accused U/s 348 BNSS to re-open the defence evidence and recalling of DW1/IO ASI
Mr. Sanjeev Kumar.
The background of the application is that the present complaint was filed
by the complainant alleging that a friendly loan was advanced by the complainant to
the accused and in discharge of the said alleged liability, the cheque in question came
to be issued by the accused to the complainant. Thereafter, the necessary stages of
section 138 N.I. Act took place and the present complaint came to be filed. Notice was
framed on the accused, and the complainant evidence was recorded. The complainant
was cross examined and discharged. The statement of accused u/s 351 BNSS/313
Cr.P.C. was recroded. Thereafter, two witnesses were examined on behalf of the
defence. DW1/IO ASI Mr. Sanjeev Kumar was examined in chief on 12.09.2025. He
was summoned to bring the relevant record of the complaint dated 09.10.2020 vide
DD No.92A filed by the accused. The said witness stated on record that the record of
the said complaint has been destroyed as per rules. The said witness brought on record
a copy of the destruction order and also, a copy of the G.D. Entry relating to the said
complaint. The cross examination of the said witness was deferred on account of non-
availaibility of Ld. Counsel for the complainant. On 26.11.2025, Ld. Counsel for
complainant stated that they did not wish to cross examine the said witness as he is a
formal witness and the said witness was discharged. The defence also got examined
DW2 bank witness.
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Thereafter, after the defence evidence was closed by the accused, the
matter was listed for final arguments and it was adjourned at the said stage multiple
times. On 02.06.2026, the final arguments were heard and the matter was reserved for
pronouncement of judgment.
Before the pronouncement of judgment, the present application came to
be filed by the accused seeking to recall DW1/IO ASI Mr. Sanjeev Kumar. It is
submitted that the said witness has deposed that the record has been destroyed as per
rules, but his examination is necessary as the complaint which was allegedly filed by
the accused is an essential part of controversy between the parties. Ld. Counsel for the
accused submits that they have a copy of the said complaint and they wish the police
official to verify whether it was the same complaint which has been destroyed by the
police. 	It is stated that the in the said alleged complaint, the present accused had
levelled allegations of threats against the complainant and that aspect is necessary to be
brought on record.
The said application of the accused has been opposed by Ld. Counsel for
complainant. It has been contended that the said alleged police complaint has no
relevance. Further, it is submitted that the stand of the accused that he filed a police
complaint against the complainant is against his own stand that he did not know the
complainant before the present case. It is submitted that the stand of the accused has
been on record and that the present case was filed in the year 2024, whereas the alleged
police complaint relates to the year 2020. Further, it is submitted that the said witness
has already been examined and has deposed that the said record has been destroyed. It
is submitted that as the alleged police complaint has been destroyed as per rules,
recalling 	the 	witness 	will 	serve 	no 	purpose. 	Further, 	that 	the 	defence 	had 	the
opportunity to re-examine the witness at the time when his evidence was being
recorded. It is prayed that the application be dismissed with heavy cost. It is further
submitted that the present application has been moved only to delay the proceedings of
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the present case and at a very belated stage. It is further submitted that the examination
by way of recall of the said witness is not necessary for the just decision of the case
under the parameters of section 348 BNSS as the said witness has already been
examined and has deposed that the alleged record has already been destroyed.
This court has heard the parties, perused the record and considered the
submissions.
It is not the case of the defence that sufficient opportunities have not been
granted to them to lead defence evidence or to examine DW1. Further, DW1 has
already been examined and has deposed that the official record has been destroyed as
per rules. The only purpose for which the accused wishes to recall DW1 is to verify
whether the complaint the copy of which is allegedly there with the accused, was filed
by the accused or not. As DW1 had already deposed that the record has been destroyed
and only the G.D. entry was brought on record, the official witness DW1 cannot be
expected to verify the same. Further, defence has shown no ground or furnish no
explanation as to why the exercise of verification, if any, was not conducted when the
said witness DW1 was being examined in the court. In fact, the matter remained at the
stage of D.E and final arguments on multiple dates of hearing.
Furthermore, the stand that there had been police complaints between the
parties is against the stand of the defence that he did not know the complainant before
the present case.
Further, the relevance of the alleged complaint and the bearing that it
may have on the alleged liability of the accused have not been shown. It has not been
clarified as to what would be the consequence even if the said complaint is proved.
Further, it has also not been shown as to what is the substantive evidence on record in
the language of the evidence law, to which such previous statement in the form of
police complaint, would render corroboration.
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In view of the above, this court does not deem the recalling of DW1 to be
essential for the just decision of the case. Accordingly, the parameters of Section 348
BNSS have not been satisfied.
Accordingly, the application of the accused u/s 348 BNSS seeking to
recall DW1 is dismissed. However, there is no order to cost.
Now what remains in the present case is the pronouncement of judgment.
Vide separate judgment of even date, accused has been convicted u/s 138
of NI Act. Copy of the judgment be given to the convict free of cost.
Judgment and the present order be uploaded on the CIS portal forthwith.
Put up for arguments on the point of sentence on 27.08.2026 at 2.00 pm.
(Danveer)
Judicial Magistrate First Class-04, NI Act
23.07.2026
Steno Purshotam Kumar, Emp. Code 99617087
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