The right to summon defense witnesses in summary trials under the Negotiable Instruments Act must conform to established legal principles ensuring fair trial rights.

O R D E R

Aggrieved by the order summoning the petitioner as a defence witness in S.T.No. 2143/2020 by the Court of the Judicial First-Class Magistrate-II, Kothamangalam, this criminal miscellaneous case is filed.

Facts in brief:

2. The 2^nd respondent company has filed the above complaint against the 1st respondent, alleging the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I.Act’). At the defence evidence stage, the 1^st respondent (accused) filed a list of witnesses, seeking to summon the Branch Manager of a company and the petitioner, an erstwhile director of the complainant company, as her witnesses.

The learned Magistrate issued summons to both the witnesses. While witness No. 1 was examined as DW1, the petitioner appeared through Counsel and objected to being summoned as a defence witness on the ground that he was a former Director of the complainant. The learned Magistrate rejected the objection and issued a bailable warrant against the petitioner. The petitioner contends that orders issuing a summons and warrant are patently erroneous and are liable to be set aside.

Submission

3. Sri. Rinny Stephen, the learned counsel for the petitioner, contends that the learned Magistrate has erred in summoning the petitioner without the accused filing an application as contemplated under Section 277 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘ BNSS ’). He also submits that an accused cannot summon the complainant or its representative as a defence witness in view of the law laid down by this Court inKamarudheen v. Shoukkathali [2001 KHC 747],Thomas v. Vijayakumari [2002 KHC 150] , Shobha Rani v. State of Kerala and others [2018 (2) KHC 73] , and KMLM Chits India Ltd v. Siji Bijeesh [2023 (1) KLD 515] . According to the learned Counsel, the learned Magistrate has summoned the petitioner without applying his mind to the law laid down in the above-referred decisions. Therefore, the orders summoning and subsequently issuing a bailable warrant against the petitioner are unsustainable in law.

Consideration:

4. The contention of the petitioner that an application is filed to summon a defence witness, in my view, is untenable for the following reasons.

5. Section 143 of the N.I.Act mandates that all offences under Chapter XVII are to be tried summarily, and it reads thus:

“143.Power of Court to try cases summarily.―(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code