2022 (8) TMI 413 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - summon of record - examination of witnesses - scope of Section 540 Cr.P.C. - HELD THAT - A perusal of the record tends to show that a that a complaint under Section 138 of the Negotiable Instrument Act has been filed by the complainant before the learned Magistrate against the petitioner herein alleging that the cheque issued by him was dishonored by the Bank on account of insufficient amount - The said complaint filed by the complainant/respondent herein is pending since 20.03.2009. An application came to be file by the complainant/respondent herein for summoning the record from the J K Bank, Patel Nagar Branch, Jammu with regard to the credit of an amount of Rs. 03 lacs in the account of petitioner-Filling Station owned by the petitioner herein from the account of the complainant. Section 540 Cr.P.C. gives a power to the Court to summon any person as a witness or examine any person in attendance though not summoned as a witness or recalled and re-examine any person, already examined and the court shall summon and examine or recall and re-examine any person at any stage of enquiry, trial or proceedings and the second part of the said provision makes it mandatory for the Court to summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. The learned Magistrate while dealing with the application (supra) has observed in of the impugned order that the summoning the Manager, J K Bank Patel Nagar, Branch, Jammu is essential for just decision of the case. As is clear from the reading of the Section 540 Cr.P.C., the said Section confers power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and, obligation of the Court provided the just decision of the case - The learned Magistrate has rightly after having considered the provisions of Section 540 Cr.P.C. and by giving detailed reasons allowed the application of the complainant/respondent herein. The learned Magistrate has passed a reasoned order, same does not suffer from any legal infirmity or impropriety and does not call any interference by this Court - Petition dismissed.

Summary

Issues Involved:
1. Inherent jurisdiction under Section 482 Cr.P.C. for quashing the order dated 10.11.2021.
2. Whether the learned Magistrate correctly exercised jurisdiction under Section 540 Cr.P.C. to summon the record from the J & K Bank.
3. Alleged misuse of Section 540 Cr.P.C. by the complainant to fill lacunae in their case.

Detailed Analysis:

1. Inherent Jurisdiction under Section 482 Cr.P.C.:
The petitioner sought to quash the order dated 10.11.2021 passed by the Learned Special Mobile Magistrate (Passenger Tax), Jammu. The impugned order allowed the complainant's application under Section 540 Cr.P.C. to summon the record pertaining to account No. 1524 maintained by the petitioner. The petitioner argued that the order was not sustainable in the eyes of law and exceeded the jurisdiction of the court, as the case had already been heard and reserved for judgment.

2. Exercise of Jurisdiction under Section 540 Cr.P.C.:
The core issue was whether the learned Magistrate correctly exercised jurisdiction under Section 540 Cr.P.C. to summon the record from the J & K Bank. Section 540 Cr.P.C. empowers the court to summon any person as a witness or examine any person in attendance though not summoned as a witness. The court is mandated to summon and examine or recall and re-examine any person if their evidence appears essential to the just decision of the case. The Magistrate observed that summoning the Manager, J & K Bank Patel Nagar, Jammu was essential for the just decision of the case, as it would clarify whether an amount of Rs. 3 lakhs had been credited to the account of the accused from the complainant's account.

3. Alleged Misuse of Section 540 Cr.P.C.:
The petitioner contended that the complainant was attempting to misuse Section 540 Cr.P.C. to fill lacunae in their case, as the trial had been ongoing for 12 years and the complainant had not previously sought to summon the bank record. The complainant argued that the money from their account had already gone and it was necessary to determine if it was credited to the accused's account. The Magistrate held that summoning the record was essential for a just decision and did not amount to filling lacunae left by the complainant.

Judgment:
The court referred to the Apex Court's judgment in "Jamatraj Kewalji Govani vs. The State of Maharashtra," which clarified that Section 540 Cr.P.C. is intended to be wide and can be exercised at any stage of the trial. The power is both discretionary and mandatory, depending on whether the just decision of the case demands it. The court concluded that the learned Magistrate had correctly exercised jurisdiction under Section 540 Cr.P.C. and that the impugned order did not suffer from any legal infirmity or impropriety. The petition was found to be without merit and was dismissed. The learned Magistrate was directed to proceed with the trial expeditiously, without granting unnecessary adjournments to either party.