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TMI Blog2022 (11) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file objections within a period of 15 days from the date of the order with advance copy thereof to learned counsel for the accused and the learned trial Magistrate was directed to make an endeavour to hear and decide the application within next 15 days. 4. Pursuant to the directions of this Court, the complainants/petitioners filed objections to the application field by the accused/respondent asserting therein that Nazir Ahmad Joo and Manager J K Bank Branch Chadoora have been examined by the complainants as their witnesses and the accused had cross examined them before being discharged, whereas Advocate A.R.Hanjura, who was the counsel of the complainants, was not required to be examined by the opposite side in view of the fiduciary relationship of counsel and the client and also that the Patwari Halqa Wathora was not required to be examined as the accused was not supposed to prove the details of his property within the village Wathora, as the same was not required for disposal of a petition under Section 138 NIA. The complainants finally prayed that the application moved by the accused-respondent seeking issuance of process for examination of Nazir Ahmad Joo, Manager J K Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the court under Section 540Cr. PC is to be exercised only to advance the cause of justice and not to cause the failure of justice. However, in the instant case, learned Magistrate rather than advancing the cause of justice of the petitioners has paved way for failure of justice by allowing the accused to vitiate the whole proceedings. Furthermore, it is stated that the trial court vide impugned order has issued process in a most mechanical and perfunctory manner against the complainants witnesses clearly and manifestly in grave abuse of process of law, hence prays for quashment of the impugned order. 8. Pursuant to the notice, respondent has filed objections to the petition, wherein respondent has vehemently denied that the trial court has abused the process of law or any illegal order has been passed. It is further submitted that on the date of dismissal of complaint, order passed by this Court was not in force and this Court only stayed the proceedings initiated vide impugned order dated 26.05.2018 not the proceedings in toto but the petitioners have construed it as the proceedings in whole, which is not the fact, hence the petitioners have remained absent in court procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation by the accused and after being satisfied the witnesses had been discharged. He has further argued that Patwari Halqa Wathora was also not required to be examined by the defence, as for the disposal of the complaint under Section 138 N.I.Act, the property of the accused is irrelevant, therefore, Patwari Halqa Wathora has also been wrongly summoned by the court below. 12. Learned counsel for the respondent, on the other hand, argued that the trial court has rightly allowed the application of the respondentaccused, as Nazir Ahmad Joo, Manager J K Bank Branch Chadoora and Patwari Halqa Wathora were important witnesses to narrate the facts so as to determine the dispute between the parties. He has further argued that the trial court has rightly and legally invoked the provisions of Section 540 Cr. PC, for accepting the application of the respondent-accused and issued process to these witnesses. He further argued that no illegality has been committed by the learned Magistrate, so as to invoke the jurisdiction in terms of Section 561-A Cr. PC, to be exercised for quashment of the impugned order. 13. Before appreciating the rival submissions, it is made clear that as noticed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the accused as his witnesses. It is yet to be heard that a witness can depose on both sides. 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. 16. On a perusal of the statements recorded by the court of two witnesses already examined by the complainants and sought to be examined by the accused, the queries that are cited to be proved have already put to them while being cross examined by the accused. It appears that the accused, not only to delay the trial of the complaint against him but also to frustrate the same, has adopted this novel method to ask the court to call witnesses examined by the complainants to be examined afresh as witnesses on his behalf in defence. 17. Provision of Section 540 Cr.PC is to be invoked by the courts only in order to meet the ends of justice, for strong and valid reasons, and this power has to be exercised with great caution and circumspection. The determinative factor should therefore, be whether the summoning/re-call ..... X X X X Extracts X X X X X X X X Extracts X X X X
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