Advocates:
['G S THAKUR', 'C M KOUL', 'SR ADV', '', 'A R BHAT']

HIGH COURT OF JAMMU, KASHMIRAND LADAKH

ATJAMMU

Reserved on : 28.06.2022

Pronounced on: 27 .07.2022

CRM(M) 744/2021

CrlM 2156/2021

Harshwardhan Singh

.....Petitioner/appellants(s)

Through:- Mr. G. S. Thakur, Advocate

v/s

M/s Triloki Nath Satish Kumar

.....Respondent(s)

Through:- Mr. C. M. Koul, Sr. Advocate with

Mr. A. R. Bhat, Advocate

Coram:

HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

ORDER

1.

Inherent jurisdiction under Section 482 Cr. P.C is being

sought for quashing the order dated 10.11.2021 (for brevity 8impugned

order9) passed in File no. 129/Comp titled as M/s Triloki Nath Satlsh

Kumar Vs Harshwardhan Singh (complaint under Section 138 of the

Negotiable Instrument Act ) passed by the Court of Learned Special Mobile

Magistrate (Passenger Tax), Jammu (for brevity 8learned Magistrate9)

whereby the learned Magistrate while allowing the application filed by the

complainant under Section 540 Cr.P.C has summoned the record pertaining

to account No. 1524 maintained by the petitioner.

2.

The impugned order dated 10.11.2021 has been called in

question in this petition precisely, on the following grounds:-

.

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CRM(M) 744/2021

i)

That the order impugned is not sustainable in the eyes

of law, since the application filed by the complainant

/respondent where the prayer has been made for

summoning of record from the J&K Bank Patel Nagar,

Branch, Jammu with respect to the account of the

petitioner and the Court below knowingly well that the

case has been finally heard and reserved for judgment

by exceeding the jurisdiction and in order to fill up the

lacuna in the complainant's case by misusing the

mandate of Section 540 Cr.P.C has ordered to

summoned the witnesses where the prayer has been

made to call for the record. The application has been

allowed by the knowingly that the complaint was filed in

the year 2009 and after 12 years of a long trial has

allowed the application just on the ground that the court

has the discretion to summon the witnesses where in a

private complaint neither the said witness was in the list

of the complainant's witnesses nor the prayer was made

by the respondent to summon the Bank Manager as a

witness in the present application. The learned court by

exceeding the jurisdiction has passed the order

impugned without appreciating this fact that the prayer

in the application is only to summon the record.

ii)

That the summoning of record is beyond the scope of

Section 540 Cr.P.C where the scope cannot be extended

and the court on its own can summon the witness and

that the Manager J&K Bank was neither in the list of

the witnesses nor any prayer was made by the

respondent for summoning the said officer as a witness

in the case. The respondents never applied for

summoning of said witnesses, but the Court below by

exceeding the jurisdiction passed the order impugned.

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CRM(M) 744/2021

iii)

That the Court below has committed an error in passing

the order impugned, as such, is liable to be quashed.

iv)

That the order impugned is otherwise not sustainable in

the eyes of law, since the prayer made in the application

is to summon the record and none of the witness sought

to have been summoned by the respondent and the Court

below was not obliged to go beyond the scope of the

prayer made in the application;

3.

Scanned record has been summoned.

4.

Heard learned counsel for the parties and perused the

material on record as well as record of the Court below.

5.

A perusal of the record tends to show that a that a complaint

under Section 138 of the Negotiable Instrument Act has been filed by the

complainant before the learned Magistrate against the petitioner herein

alleging that the cheque issued by him was dishonored by the Bank on

account of insufficient amoun