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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
MOHD. AKRAM CHOWDHARY, J.
Azra & Ors. - Petitioners
Versus
Mohd. Afzal Baghat - Respondent
CRMC No. 319 of 2018
Decided On : 10-11-2022
N.I. Act - Negotiable Instruments Act, 1881 - Section 138, Section 540 Cr.P.C., Section 126 Evidence Act - The court discussed the provisions of Section 138 of the Negotiable Instruments Act, which pertains to the dishonor of cheques, and Section 540 of the Criminal Procedure Code, which allows the court to summon witnesses to ensure justice. The court emphasized that witnesses already examined by one party cannot be called by the opposite party unless under specific circumstances. The interpretation of these sections influenced the court's decision to quash the order allowing the accused to summon complainants' witnesses, as it was deemed an abuse of process and not in line with the principles of fair trial.
Fact of the Case:
The complainants filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The accused sought to summon witnesses who had already been examined by the complainants, which led to a dispute over the legality of this action. The trial court allowed the accused's application to summon these witnesses, prompting the complainants to challenge this order.
Finding of the Court:
The court found that the trial magistrate had erred in allowing the accused to summon witnesses who had already been examined by the complainants. The court emphasized that such actions could lead to an abuse of process and delay in proceedings, which is contrary to the principles of justice.
Issues: Whether the trial court could allow the accused to summon witnesses already examined by the complainants, and whether such an action constituted an abuse of process under the law.
Ratio Decidendi: The court held that witnesses examined by one party cannot be called to testify for the opposite party unless there are compelling reasons. The invocation of Section 540 Cr.P.C. must be done cautiously and should not undermine the fairness of the trial.
Final Decision: The court quashed the trial magistrate's order allowing the accused to summon the complainants' witnesses, thereby upholding the integrity of the trial process.
JUDGMENT :
Mohd. Akram Chowdhary, J.
1. In a complaint under section 138 of Negotiable Instruments Act, 1881, filed before the court of learned Judicial Magistrate (Sub-Judge) Chadoora, the complainants-petitioners herein are stated to have examined Nazir Ahmad Joo, Manager J&K Bank Branch Chadoora, Mohammad Yousuf Wani and Ghulam Nabi Wani as complainants' witnesses, which were stated to have been duly cross examined by learned counsel for the accused.
2. On 10.04.2014 the respondent-accused filed the application mentioning therein the list of defence witnesses seeking issuance of process for presence of witnesses namely Nazir Ahmad Joo, Advocate A.R. Hanjura, Manager J&K Bank Branch Chadoora and Patwari Halqa Wathora at S.Nos. 1 to 4 respectively, in the list of witnesses and it was prayed that these witnesses be called through the process of court. The application moved by the accused was allowed on the same day vide order dated 10.04.2014, perusal whereof reveals that it was allowed in a routine manner.
3. Aggrieved of the order dated 10.04.2014, whereby application moved by the accused was allowed in a routine manner, it was challenged by way of filing of petition under section 561-A Cr.P.C. and this Court vide order dated 21.04.2017 allowed this Petition No. 68/2015 and the impugned order dated 10.04.2014 was quashed, directing the petitioners 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 Bank Branch Chadoora and earlier counsel of the complainants Mr. A.R. Hanjura as defence witnesses, be dismissed.
5. After hearing both the parties and consideration of the rival submissions, learned Magistrate vide order dated 26.05.2018 did not find favour with the objections raised by the complainants to the extent of examining Nazir Ahmad Joo one of the complainants and Manager J&K Bank Branch Chadoora and ordered to recall them to be examined as witnesses of the accused, invoking Section 540 Cr.P.C. The application was also allowed to the extent of issuance of process for presence of Patwari Halqa Wathora with a direction to come with complete details of the property of accused Mohammad Afzal Baghat.
6. Contention of complainants to the extent of not allowing Mr. A.R. Hanjura as defence counsel was, however, agreed by the learned Magistrate in view of the provisions of Section 126 of Evidence Act, Svt. 1977 due to the professional communication of the counsel by the client.
7. Having been aggrieved of the order dated 26.05.2018 passed by learned Magistrate, whereby the contention of complainants to not allow the plea of the accused to allow Nazir Ahmad Joo one of the complainants and Manager J&K Bank Branch Chadoora and Patwari Halqa Wathora as witnesses of the respondent-accused, the same has been challenged through this petition filed under section 561-A Cr.P.C. seeking quashment of process initiated by the im
Witnesses already examined by one party cannot be summoned by the opposite party without valid justification, as this could lead to an abuse of process and compromise the fairness of the trial.
(1) Recall of witness – Exercise of this power cannot be dubbed as filling in a lacuna in a prosecution case.(2) Witnesses examined by one party cannot be allowed to be examined on behalf of opposite....
The court emphasized the accused's right to examine witnesses in defense without needing to specify their relevance, enabling fair trial rights.
[The judgment establishes that an accused in a Sec. 138 N.I. Act case has an absolute right to cross-examine the complainant if a probable defense is disclosed, reinforcing the procedural safeguards ....
The court reinforced that under the Negotiable Instruments Act, an accused must file a specific application to recall a witness for cross-examination, failing which the trial can proceed without such....
The court emphasized that the power under Section 311 Cr.PC should be used judiciously and not as a means to delay proceedings or fill up lacunae in the prosecution's case.
In proceedings under the Negotiable Instruments Act, the accused cannot provide evidence via affidavit and must request in writing to testify, adhering to strict procedural compliance.
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