Point of Law: Power of a court under Section 254(2) to issue summons to any witness directing him to attend or to produce any document or other thing is confined in matter of calling and summoning witnesses and documents which are relevant to decide matter in controversy.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter) and thereafter, the first prayer therein (Relief No.a) got amended. Accordingly, at present, the petitioner seeks the following reliefs:

a. Quash Annexure F Order of the JFCM-I, Muvattupuzha in ST No. 4592/2014 and summons issued to the witnesses named in Annexure D witness schedule;

b. Pass such other Orders and to issue such other directions which are deemed expedient considering the facts and circumstances of the case.

2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the first respondent.

3. The petitioner herein impugns Annexure F order, whereby, the learned Magistrate ordered to issue summons to the witness No.1 in Annexure D witness schedule. It is submitted by the learned counsel for the petitioner that, based on Annexure F order, the Magistrate court issued summons to all four witnesses and the original summons so issued also have been placed along with this petition, with a direction to appear before the court on 30.6.2022.

4. It is argued by the learned counsel for the petitioner that the cheque in question, where from the prosecution emanates in this matter, is one issued by the accused, who is the wife of Sri.Bijeesh, who availed chitty prize money from the complainant company during 2014, on executing agreement, wherein, the present accused is the guarantor. The agreement was dated 15.1.2013. According to the learned counsel for the petitioner, since the question involved in this prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, is pertaining to proof of transaction, which led to execution of the cheque, the examination of witness Nos.1 to 4 shown in witness schedule, produced as Annexure D, is not at all necessary and the intention of the first respondent is to drag the matter as well as to harass the complainant, by calling unwanted witnesses with direction to produce irrelevant documents. The learned counsel pointed out that, money lending licence, certificate of registration and original registration certificate are the documents sought to be let in evidence, by examining witness No.1. He also submitted that, as regards to witness Nos.2, 3 and 4 are concerned, they are Chartered Accountant, Company Secretary as well as Advocate and Notary, who had attested certain documents. Therefore, their examination on the premise to disprove the case of the complainant is not at all necessary.

5. In this connection, the learned counsel for the petitioner placed reliance of Section 254(2) of the Cr.P.C. to contend that the power of a court under Section 254(2) to issue summons to any witness directing him to attend or to produce any document or other thing is confined in the matter of calling and summoning witnesses and documents which are relevant to decide the matter in controversy and the said provision does not authorize the Magistrate to summon and produce unwanted documents which are irrelevant. The learned counsel also placed decision of this Court reported in Muthulekshmi Amma v. Prabhakaran P.K. and Another [2008 (3) KHC 149]. In this decision, this Court held that Magistrate has to ensure that the power to issue summons not to be invoked to cause harassment to the complainant or the witnesses sought to be summoned, though the court is having power to examine the witnesses, if the court satisfies that examination of the said witness is relevant and necessary for setting up of the defence of the accused. Similarly, another decision of the High Court of Bombay reported in Prabhakar Xembhu v. Surendra V.Pai and Another [2006 KHC 1385] also has been placed to buttress the said ratio. Therefore, the learned counsel for the petitioner argued that issuance of summons to witness Nos.1 to 4 are illegal and against the spirit of Section 254(2) of the Cr.P.C.

6. Whereas, it is submitted by