Dismissed¶31

Upasana Jhina v. Amit Thakur

Himachal Pradesh HC20 Nov 2025CRMMO/1026/2025

Case brief

AI extract

What is this about?

Section 311 CrPC additional evidence after evidence closed by Court; impermissibility of treating Section 311 application as review/circumvention; Section 528 BNSS / Section 482 CrPC inherent jurisdiction, rare-case exercise, abuse of process, ends of justice; relevance of proposed evidence precondition; Section 138 NI Act cheque dishonour complaint; HDFC Bank Sanjauli branch bank statement; defence evidence closed 07.05.2025; NBWs, bail, change of counsel; Shyam Verma v. State of H.P. 2012 SCC OnLine HP 1569 relied on; Upasana Jhina v. Amit Thakur, Cr. MMO No.1026 of 2025, HHC 2025, petition dismissed.

What did the court decide?

None; the petition fails and is dismissed, the impugned order of 10.09.2025 remaining intact. ¶31

Upasana Jhina Vs Amit Thakur — Cheque Dishonour | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

None; the petition fails and is dismissed, the impugned order of 10.09.2025 remaining intact.

¶31

Issue for consideration

Whether the present petition under Section 528 BNSS should be allowed and the Trial Court's order dated 10.09.2025 dismissing the accused's Section 311 Cr.P.C. application for additional evidence be set aside. +1 more

¶17

Court's answer

Closure of evidence by the Court does not bar the exercise of the Section 311 Cr.P.C. power to summon a person as a witness at any stage of the trial; the learned Trial Court erred in dismissing the application on the ground that the evidence had been closed by the Court and that the application was an attempt to circumvent its order (following Shyam Verma v. State of H.P.).

¶25

Ratio / Principle

The relevance of the proposed bank-statement evidence was never mentioned before the Trial Court or this Court — it was not shown how the financial transactions would assist in deciding whether the Section 138 NI Act offence was committed; since only relevant evidence can be admitted, the application for leading additional evidence could not have been allowed.

¶29

Key takeaways

The jurisdiction under Section 528 BNSS (corresponding to Section 482 Cr.P.C.) is extraordinary, to be exercised in rare cases to prevent abuse of process, give effect to orders under the Code, or secure the ends of justice; it cannot be exercised where the relevance of the evidence sought to be adduced is not apparent.ratio¶30
The observations made in the judgment are confined to the disposal of this petition and have no bearing whatsoever on the merits of the pending trial.obiter¶32

Detailed headnote1 paragraphs

Cr. MMO (H.P. High Court, Rakesh Kainthla, J., 20.11.2025): Petition under Section 528 BNSS (corr. Section 482 Cr.P.C.) against the order dated 10.09.2025 of the CJM, Shimla dismissing the accused's Section 311 Cr.P.C. application to place on record her HDFC Bank, Sanjauli bank statement in a pending Section 138 NI Act complaint. Held (paras 6-7, relying on Shyam Verma v. State of H.P., 2012 SCC OnLine HP 1569): closure of evidence does not bar the Section 311 power, so the Trial Court could not dismiss the application merely as a circumvention of its evidence-closure order. Held (paras 8-9): the relevance of the proposed bank statement to the Section 138 dispute was never indicated; only relevant evidence is admissible, and the extraordinary Section 528 BNSS jurisdiction cannot be exercised where the relevance of the evidence sought is not apparent. Petition dismissed; observations confined to this petition with no bearing on trial merits. Petitioner is the accused; respondent the complainant-side party; no monetary quantum involved.

¶1

2025:HHC:39129

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

Cr. MMO No.1026 of 2025 Reserved on: 29.10.2025 Date of Decision: 20.11.2025

¶4

Upasana Jhina ...Petitioner Versus Amit Thakur ...Respondent

¶5

Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

¶6

For the Petitioner : Mr. Rohan Tomar, Advocate. For the Respondent : None.

¶7

Rakesh Kainthla, Judge

¶8

The present petition is directed against the order dated 10.09.2025 passed by learned Chief Judicial Magistrate, Shimla (learned Trial Court) under Section 311 of Cr.P.C vide which the application filed by the petitioner for placing on record the additional evidence was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

¶9

2. Briefly stated, the facts giving rise to the present petition are that a complaint against the accused is pending before the learned Trial Court for the commission of an offence

¶10

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

¶11

¶12

2025:HHC:39129

¶13

punishable under Section 138 of the Negotiable Instruments Act (in short, ‘NI Act’). The accused filed an application under Section 311 of Cr.P.C. for summoning the witness from HDFC Bank, Sanjauli Branch. Learned Trial Court held that the accused had availed effective opportunities for leading defence evidence on 16.04.2025 and 07.05.2025, and when no evidence was produced, the evidence was closed by the Court. The application was filed to circumvent the order passed by the Court. Therefore, the application was dismissed vide order dated 10.09.2025.

¶14

Being aggrieved by the order passed by the learned Trial Court, the present petition has been filed asserting that the matter was listed for leading defence evidence on 16.04.2025 and 07.05.2025. No evidence was produced, and the opportunity to lead evidence was closed on 07.05.2025. The matter was listed on 28.05.2025, and the accused could not appear before the learned Trial Court. Learned Trial Court issued Non-Bailable Warrants of arrest. The accused was produced before the learned Trial Court on 28.07.2025, and she was granted bail. She changed her counsel on the same day and filed a fresh Power of Attorney. The bank statement of the accused from HDFC Bank, Sanjauli Branch, was not placed on record. The bank statement was necessary to clarify

¶15

¶16

2025:HHC:39129

¶17

the financial transaction between the complainant and the accused and would assist the learned Trial Court in the adjudication of the dispute. The documents could not be placed earlier because the accused was busy taking care of her 82-yearold father, who had suffered a heart attack in the year 2024. He was paralysed in the year 2025 and was bedridden. The documents were necessary for the proper adjudication of the dispute. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

¶18

Mr Rohan Tomar, learned counsel for the petitioner/accused, submitted that the learned Trial Court erred in dismissing the application. The documents could not be produced earlier because the petitioner/accused was taking care of her bedridden father. Learned Trial Court had not considered this aspect. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

¶19

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

¶20

Learned Trial Court dismissed the application on the ground that the evidence of the petitioner/accused was closed by the order of the Court, and it was impermissible to review it by

¶21

¶22

2025:HHC:39129

¶23

taking recourse to Section 311 of Cr.PC. This was contrary to the judgment of Shyam Verma v. State of H.P., 2012 SCC OnLine HP 1569, wherein it was observed:

¶24

“ 10. The learned counsel for the petitioner has submitted that the evidence of the prosecution was closed on 1.7.2010 and that the order attained finality. The order dated 28.12.2010 amounts to a review of the order dated 1.7.2010, which is not permissible. This contention has no force. Section 311 of the Code authorises the Court to summon any person as a witness at any stage of the trial. This power is available to the Court even after the closure of the evidence of the prosecution…”

¶25

Therefore, the learned Trial Court could not have dismissed the application on the ground that the evidence was closed by the Court and the application was an attempt to circumvent the order passed by it.

¶26

Para 6 of the application mentions that it transpired after applying for the copies of the case file that the bank statement of the accused from HDFC Bank, Sanjuali, was not placed on record. The bank statements were needed to clarify the financial transactions between the parties. It was not mentioned how the financial transactions between the parties would have assisted the Court in determining whether the offence punishable under Section 138 of the NI Act was committed or not. The relevance of the documents was not mentioned before the learned

¶27

¶28

2025:HHC:39129

¶29

Trial Court or this Court. Since only relevant evidence can be admitted, therefore, the application for leading additional evidence could not have been allowed.

¶30

The jurisdiction under Section 528 of BNSS (corresponding to Section 482 of Cr.P.C.) is extraordinary and is to be exercised in rare cases to prevent the abuse of the process of the Court, to give effect to any order under the Code or to secure the ends of justice. When the relevance of the evidence sought to be adduced is not apparent, the jurisdiction under Section 528 of BNSS cannot be exercised.

¶31

Consequently, the present petition fails, and it is dismissed.

¶32

The observations made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.

¶33

20^th November,2025 (Nikita)

¶34

( Rakesh Kainthla) Judge

Upasana Jhina v. Amit Thakur

Case brief

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Upasana Jhina v. Amit Thakur

Case brief

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