The discretion of the magistrate in issuing summons to witnesses and the need to prevent protraction of proceedings in cases under S.138 of the Negotiable Instruments Act.

R. Basant, J.

1. The petitioner faces indictment in a prosecution under S.138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.50,000/- and is shown to be dated 31/12/1999. Notice of demand though duly received was not replied to by the accused. Accused, in the course of the trial, has taken up a contention that the date 31/12/1999 is an alteration / forgery and that when the cheque was handed over, it bore the date 31/12/1997. The last digit 7 has now been altered to 9. This is the crucial contention raised. According to the petitioner, in 1997 when there was a transaction of Rs.30,000/-, two cheques one for Rs.30,000/- and another for Rs.50,000/- were obtained from the petitioner by the complainant who is a money lender and he had kept the same with him. In respect of the cheque for Rs.30,000/-, Annexure B notice was issued. Annexure C cheque was issued along with the original of Annexure D reply notice by the petitioner himself directly to the advocate.

2. The complainant denied these allegations. Earlier transactions were not disputed. But it was contended that the cheque evidences a liability to repay an amount of Rs.50,000/- and it always bore the date 31/12/1999. The accused, it was pointed out by the complainant, had already suffered a civil decree for the amounts shown in this cheque.

3. At the stage of defence evidence, accused filed an application to forward the cheque to the expert to ascertain and report whether there has been any alteration / forgery in respect of the last digit of the year ("7" or "9"). The learned Magistrate, by the impugned order, rejected the said prayer. The petitioner claims to be aggrieved by the said rejection.

4. An accused is certainly entitled to adduce defence evidence in a summons trial case. S.245(2) CrPC makes it clear that the accused has no unbridled right to insist on issue of summons to any witness of his choice. The Court has to exercise a discretion. Only if the Court thinks fit, need summons be issued to any witness. It is common knowledge that in prosecutions under S.138 of the Negotiable Instruments Act the mischievous goal of protraction of proceedings can be easily achieved by making a request to forward the cheque to the expert. In Francis v. Pradeep, 2004 KHC 721 : 2004 (2) KLJ 329 : 2004 (2) KLT 1080 it has been stated that the learned Magistrate has to exercise an alert discretion under S.254(2) CrPC. The totality of circumstances has to be taken into consideration.

5. I take note of the circumstances that the cheque on the face of it does not indicate any correction / forgery. I take note of the further fact that no reply notice was issued raising this contention. It must also be noted that even admittedly there is nothing to show that Annexure D notice was issued to the learned counsel for the complainant or received by him. It remains a manuscript copy with no proof admittedly to show that it had been sent to the complainant's advocate and received by him. I take note of the further circumstance alertly pointed out by the learned counsel for the complainant that the cheque to which Annexure B refers to, bears the number 562978 dated 11/12/1997 whereas the cheque in question bears the number 562995 dated 31/12/1999. The counsel alertly points out that even if it were 1997, as contended by the petitioner, the cheque involved in the prosecution comes 18 leaves after the cheque referred to in Annexure B notice, thus knocking the bottom out of the theory, the two cheques were simultaneously handed over. The counsel further points out that the admitted case that both the cheques were filled up in all particulars and were handed over does and must also arouse suspicion and reservation in the mind of the Court. If the transaction was only for Rs.30,000/- why were two cheques for Rs.30,000/- and Rs.50,000/- both dated December 1997 were handed over also remains unexplained. It is also not disputed that the Civil Court has decreed the claim for money on