M.M.S. Bedi, J.@mdashThis petition u/s 482 Cr.P.C. has been filed for quashing of the order dated June 7, 2006 (P-9) passed by Sub-Divisional
Judicial Magistrate, Malerkotla, dismissing an application of the petitioner u/s 311 Cr.P.C. for recalling Janeshwar Dutt, complainant-witness No,
2 for the purpose of exhibiting the original cheque No.741298 dated February 25,2002 and memo dated August 14,2002 on the ground that the
application has been moved after a gap of two years and the complainant-petitioner wants to fill in the lacuna in the complaint case u/s 138 of the
Negotiable Instruments Act filed by him. The said complaint admittedly is still pending for the evidence of the complainant.
2. Counsel for the petitioner has submitted that in the present case the cheque No.741298 dated February 25,2002 for a sum of Rs.2 lacs drawn
on State Bank of Patiala was produced on the record while leading preliminary evidence in the form of affidavit (Annexure P2) at pre-notice
accusation stage and that inadvertently, while appearing as a witness alter notice of accusation, the said cheque and the memo regarding return of
the cheque as dishonoured on presentation could not be exhibited. Copy of the statement of the petitioner as Annexure P3 and the statement of
Kuldip Singh. Clerk-cum-cashier, Punjab National Bank as Annexure P4 in the form of affidavit has been produced wherein it is specifically stated
on oath that cheque No.741298 dated February 25, 2002 was deposited by the petitioner-complainant in his account and it was returned on
August 16,2002 with remarks ""insufficient funds"".
3. I have heard counsel for the petitioner and respondent and gone through the contents of complaint and the evidence already produced on the
record. The cheque and the memo returning the same on account of insufficiency of funds is the most material substance in proceedings u/s 138 of
the Negotiable Instruments Act. The production of a cheque and memo is always necessary for the just decision of a complaint pending in the
Court. While deciding the application u/s 311 Cr.P.C. a Court is required to make a distinction between the error and lacuna and to determine
whether the production of some evidence or material should be brought on evidence taking into consideration whether it is necessary for the just
decision of the case. The Hon''ble Supreme Court in 1999(3) RCR (Cri.) 440, Rajendra Prasad v. The Narcotic Cell through its Officer-in-
charge, Delhi, laid down the following distinction between lacuna and error for the purpose of deciding an application u/s 311 Cr.P.C:-
7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers u/s 311 of the Code
or u/s 165 of the Evidence Act by saying that the court could not'' fill the lacuna ""in the prosecution case''. A lacuna in prosecution is not to be
equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant
answers from witnesses. The adage ""to error in human'' is the recognition of the possibility of making mistakes to which humans are prone. A
corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.
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.
4. I have considered the facts and circumstances of this case. A perusal of the statement of Janeshwar Dutt Annexure P2 made in the Court at the
pre- notice accusation stage and his subsequent statement Annexure P3 read with statement of the Bank official Annexure P4 makes it clear it
clear that it was an oversight on the part of the complainant or his counsel to get the cheque and memo proved and exhibited on the record. It is
not a case where the petitioner was making an attempt to fill in the lacuna but it was merely a fallout of an oversight committed by the counsel
conducting the case. The order dated June 7,2006 (P-9) dismissing the application u/s 311 Cr.P.C, if seen in context to the spirit of Section 311
Cr.P.C, is not sustainable especially when the matter is still pending for the complainant''s evidence.
5. The petition is allowed and the order dated June 7, 2006 is hereby set aside. The application u/s 311 Cr.P.C. filed by the petitioner deserves to
be allowed. The matter is remanded back to the trial Court to again summon the complainant for the short purpose of proving the cheque
No.741298 dated February 25,2002 and the memo of return of the said cheque on account of insufficient funds. The said documents appear to be
necessary for the just decision of the matter. The opposite party will be at liberty to cross-examinee the petitioner in context to the documents
exhibited by him during re-examination.