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TMI Blog2022 (8) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh 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 reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on its own can summon the witness and that the Manager J & K Bank was neither in the list of the witnesses nor any prayer was made by the respondent for summoning the said officer as a witness in the case. The respondents never applied for summoning of said witnesses, but the Court below by exceeding the jurisdiction passed the order impugned. iii) That the Court below has committed an error in passing the order impugned, as such, is liable to be quashed. iv) That the order impugned is otherwise not sustainable in the eyes of law, since the prayer made in the application is to summon the record and none of the witness sought to have been summoned by the respondent and the Court below was not obliged to go beyond the scope of the prayer made in the application; 3. Scanned record has been summoned. 4. Heard learned counsel for the parties and perused the material on record as well as record of the Court below. 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng information of the bank account after 12 years and hearing the final arguments. Therefore, present application deserves to be dismissed out rightly." 9. The learned Magistrate while considering the application (supra) vide impugned order dated 10.11.2021 observed as under:- "The moot point for determination at this stage as raised by the Ld. counsel for the non-applicant/accused is that the Section 540Cr.P.C. pertains to summoning of witnesses and not pertains to summoning of record, moreover, the applicant/complainant should have filed the present application on the cross-examination of the applicant/complainant and now the applicant/complainant cannot be permitted to fulfill the lacunas left by him during the trial. I have also considered the argument of the Ld. Sr. counsel for the applicant/complainant that the money from the account of the applicant/applicant has already gone and now it is to be seen whether it goes to the account of the non-applicant/accused or not and is essential to the just decision of the case. The Ld. Sr. counsel has further argued that the record would not become in air and some responsible officer of that Bank' could produce the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to the account of the petitioner as witness to produce the record mentioned above. 12. 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. 13. A reference to the judgment of the Apex Court in this regard passed in case titled as "Jamatraj Kewalji Govani vs. The State of Maharashtra reported in 1968 AIR SC 178, would be relevant and germane herein, wherein the Apex Court in has laid down as following:- "To begin with, we do not accept as sound the argument that Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex-improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex-improviso may not be answered by contrary evidence on the part of the Crown." There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory J. in Rex v. Dora Harris (1): "The cases of Reg. v. Chapman (8 C & P. 558) and Reg. v. Holden (8 C & P. 606) establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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