Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yousuf Mir vs Mohammad Abdullah Jan on 6 February, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 18/2019
IA No. 01/2019
Date of order: 06.02.2019
Mohammad Yousuf Mir
Vs.
Mohammad Abdullah Jan
Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearing Counsel:
For Petitioner(s): Mr. B.A.Zargar, Advocate.
For Respondent(s):
i) Whether approved for reporting in Law journals etc.: Yes / No
ii) Whether approved for publication in press: Yes / No
1. The petitioner herein appears to have been facing trial in the court of learned Judicial Magistrate 1st class, Pattan, on the charge of commission of offence under Section 138 Negotiable Instrument Act. Order passed on 14.12.2018 reveals that the application presented for examination of two more witnesses after closure of defence evidence, was rejected by the court. Feeling aggrieved of passing of said order(for short hereinafter referred as impugned order), petitioner has challenged it while contending that the approach of the learned trial court was unjustified and erroneous. Factual background of the case as has been put-forth to appreciate the arguments, is quoted from the petition:-
"That the respondent herein had filed compliant under Section 138 of Negotiable Instruments Act before the court of Judicial Magistrate, Magam and later on the said case was transferred to the court of Judicial -2- Magistrate, Pattan. The petitioner submitted his reply to the said compliant but the lawyer of the petitioner has taken a stand that the cheques are forged and has not been issued by the petitioner and disputed the signature on the cheques also. However, this was not the stand of the petitioner as he had already transferred the amount in the account of the respondent from time to time. According to the petitioner, his lawyer has deceived him by taking different stand. The petitioner had transferred the whole amount in the CC Account No.35 of the respondent which is evident from the record of the bank statement. According to the petitioner, learned Judicial Magistrate, Pattan had failed to appreciate this aspect of the matter and passed the impugned order. The witnesses have said in their evidences that the petitioner has transferred the amount which was due in the account of the respondent from time to time. It is further submitted that the learned Judicial Magistrate, Pattan was duty bound to allow the application of the petitioner for summoning the witnesses along with the record for appropriate adjudication and to do justice with the case. In case the application would have been allowed the matter would have been got decided. As such, petitioner has no other alternate efficacious or speedy remedy available but to invoke the extraordinary jurisdiction of this Court for redressal his genuine grievance."
2. I have heard learned counsel for the petitioner who has laid emphasis on the argument that it was necessary for doing complete justice with the parties to call the witnesses for examination. The court having power under Section 540 Cr.PC was under obligation to do so, according to him.
3. I have considered the arguments raised by the learned counsel for the petitioner and gone through the material available on record.
-3-4. It appears from the perusal of the impugned order that the learned trial court has made reference of the stand of the petitioner while being examined under Section 242 Cr.PC. It is stated therein that the petitioner had denied issuance of cheques and also stated that he had liquidated the amount involved in two cheques. The application moved, as such, for exercise of power under Section 540 Cr.PC, according to the learned trial court, was meant to protract the disposal of the main case and fill up lacunae in the defence version. Learned trial court has also noted that the petitioner herein was directed to lead evidence on 19.10.2013 and he had also furnished the list of witnesses. He examined three witnesses named therein and ultimately his evidence was closed on 06.02.2018 that too on submission of the learned defence counsel. One of the witnesses, as further recited in the impugned order namely Branch Manager, J&K Bank, Gole Market, Karan Nagar, whom the petitioner wanted to call and examine, has been examined by the complainant as well. Learned trial court has, as such, framed the opinion that there would be no failure of justice in case the application would not be accepted.
5. It may be proper herein to state that the power under Section 561-A Cr.PC is to be exercised sparingly, carefully and with caution; and only when such power exercised is justified by the tests laid down in the Section itself. The factual narration made herein by the petitioner cannot be entertained by this Court for returning finding as if this Court had to act as either trial or appellate court. It would be for the trial court to examine the stand of both the parties and return its finding on the factual narration made by either of them.
-4-6. Section 540 Cr.PC, as it may be proper herein to reproduce, provides as:
"540. Power to summon material witness, or examine persons present.
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
7. It is true that the learned trial court is clothed with the power in terms of Section 540 Cr.PC, whereby it can call the witness for examination if same is necessary for a just decision of the case. It, thus, enables the court to arrive at the truth by summoning and examining the witness/witnesses, who can give relevant evidence meant to unfold the truth. The plain reading of the said Section does not suggest that such a power cannot be exercised after closure of evidence, but for exercising such a power, the court has to record its satisfaction that the evidence of said witness is essential for a just decision of the case. It is, therefore, for the trial court to examine the relevant aspects and to see whether the approach of the party seeking indulgence of the court by exercising power under Section 540 Cr.PC is actuated with bona-fide and is not aimed to protract the proceedings pending or to fill some lacunae in the case.
8. In the case in hand learned trial court has noted the stand of the petitioner herein, who had denied execution of the cheques, -5- provided him sufficient opportunity to examine the witnesses, list of which has been submitted and later on the defence evidence closed at his own instance. In such circumstances the discretion exercised by the learned trial court cannot be said to have made erroneously or improperly necessitating exercise of power under Section 561-A Cr.PC.
9. Petition, as such, is not worth to be entertained, accordingly dismissed.
(Rashid Ali Dar) Judge Srinagar 06.02.2019 Muzammil. Q