2022 (11) TMI 994 - HC - Indian Laws

Dishonor of Cheque - witness produced by prosecution/complainant, properly examined or not - Section 540Cr. PC - HELD THAT - It is made clear that as noticed, the application moved by the respondent-accused has been allowed by the learned Magistrate invoking the provisions of Section 540 Cr. PC without being prayed therefor. It is a fact that one of the witnesses sought to be examined by the accused namely Nazir Ahmad Joo is one of the complainants who had also been examined as the complainants witness, so is the case of Manager J K Bank Branch Chadoora who had already been examined as complainants witness and that both these witnesses have been subjected to lengthy cross examination by the respondent-accused before they were relieved without any resistance. The respondent-accused had all the liberty to cross examine the witnesses examined by the complainants on all the aspects and even beyond the scope of examination-in-chief, therefore, it appears that the accused either with a motive to delay the proceedings or with a view to harass the complainants, have given the names of complainant Nazir Ahmad Joo and Manager J K Bank Branch Chadoora to be called as witnesses on his behalf. In the considered opinion of this Court the trial Magistrate on an application moved by the accused-respondent has invoked the provisions of Section 540 Cr.PC without asking for it. The question to be decided by the learned trial Magistrate was as to whether the witnesses examined by the complainants can be asked to appear as witnesses for the defence. Even if the learned Magistrate was of the view that certain clarifications were required to be made by these witnesses while being cross examined and re-examined during trial, it could not be legally tenable to call these witnesses on behalf of the opposite party - It is also not clear as to what the Patwari Halqa Wathora has to prove about the details of the property of the accused when the accused himself can do that and for a complaint under Section 138 N.I Act, the property, if any of the accused-respondent, is not relevant at all. It is held that the witnesses examined by one party cannot be allowed to be examined on behalf of the opposite party at its instance. Learned Magistrate has, thus, erroneously passed the impugned order by misdirecting himself to invoke Section 540 Cr. PC to summon the witnesses already examined by the complainant to be called as witnesses on behalf of the accused-respondent. Learned Magistrate has also not applied his mind as to whether Patwari Halqa Wathora was required to be produced by the accused-respondent so as to prove his property, as the property of the accused-respondent, was not the relevant factor in a complaint under Section 138 N.I.Act. The impugned order thus, suffers from illegality and amounts to abuse of process of court. The impugned order is required to be set aside, partially, the impugned order is resultantly quashed to the extent of calling Nazir Ahmad Joo, Manager J K Bank Branch Chadoora and Patwari Halqa Wathora, as witnesses on behalf of the accused-respondent - Petition disposed off.

Summary

Issues Involved:
1. Legality of summoning witnesses already examined by the complainants to be re-examined as defense witnesses.
2. Invocation of Section 540 Cr.PC by the trial Magistrate.
3. Relevance of summoning Patwari Halqa Wathora in a complaint under Section 138 of the Negotiable Instruments Act.

Issue-wise Detailed Analysis:

1. Legality of Summoning Witnesses Already Examined by the Complainants to be Re-examined as Defense Witnesses:
The complainants challenged the order allowing the accused to summon Nazir Ahmad Joo and the Manager of J&K Bank Branch Chadoora, who were already examined and cross-examined as complainants' witnesses. The court noted that these witnesses had been thoroughly cross-examined by the accused. The accused's request to re-examine these witnesses as defense witnesses was seen as an attempt to delay proceedings and harass the complainants. The court emphasized that a witness cannot depose on both sides and found no valid reason for re-examining these witnesses on behalf of the defense.

2. Invocation of Section 540 Cr.PC by the Trial Magistrate:
The trial Magistrate invoked Section 540 Cr.PC to allow the re-examination of the aforementioned witnesses without a specific application from the accused. The court clarified that Section 540 Cr.PC should be used to advance the cause of justice and not to cause a failure of justice. It was held that the trial Magistrate misdirected himself by allowing the application of the accused to summon these witnesses, as it was not essential for the just decision of the case. The court stated that the provision under Section 540 Cr.PC must be exercised with caution and only when it is essential to meet the ends of justice.

3. Relevance of Summoning Patwari Halqa Wathora in a Complaint under Section 138 of the Negotiable Instruments Act:
The trial Magistrate also allowed the summoning of Patwari Halqa Wathora to provide details of the accused's property. The court found this irrelevant for a complaint under Section 138 of the Negotiable Instruments Act, as the property details of the accused were not pertinent to the case. The court emphasized that the accused himself could provide such details if needed, and the summoning of Patwari Halqa Wathora was not justified.

Conclusion:
The court concluded that the trial Magistrate's order suffered from illegality and amounted to an abuse of the process of the court. The impugned order was quashed to the extent of summoning Nazir Ahmad Joo, the Manager of J&K Bank Branch Chadoora, and Patwari Halqa Wathora as witnesses on behalf of the accused. The petition was disposed of accordingly.