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2022 DIGILAW 354 (JK)

Harshwardhan Singh v. Triloki Nath Satish Kumar

2022-07-27

VINOD CHATTERJI KOUL

body2022
JUDGMENT : 1. Inherent jurisdiction under section 482 Cr.P.C. is being sought for quashing the order dated 10.11.2021 (for brevity 'impugned order') passed in File No. 129/Comp titled as M/s. Triloki Nath Satish Kumar v. 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 'learned Magistrate') 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:- 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. 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 here in alleging that the cheque issued by him was dishonored by the Bank on account of insufficient amount. 6. The said complaint filed by the complainant/respondent herein is pending since 20.03.2009. An application came to be file by the complainant/respondent herein for summoning the record from the J&K Bank, Patel Nagar Branch, Jammu with regard to the credit of an amount of Rs. 03 lacs in the account of petitioner-Filling Station owned by the petitioner herein from the account of the complainant. 7. In the application (supra) filed by the complainant/respondent herein, it was stated as under :- “That the complainant/applicant paid an amount of Rs. 3 Lacs by Cheque i.e. Cheque No. 7956, to the respondent/accused who is the owner of the Petrol Filing Station and accordingly took the cheque from the complainant in the name of his Petrol Filing Station i.e. Satish Filing Station. That an amount of Rs. 3.00 Lacs has been debited from the account of the complainant once respondent/accused submitted the cheque in question for encashment to his bankers and proceed an amount of Rs. 3.00 Lacs came to be credited in the account of the respondent/accused who has been maintaining his account in J&K Bank, Patel Nagar Jammu”. 8. The said application was opposed and resisted by the petitioner herein on the following ground:- “......It is submitted that the non-applicant never received any payment from the complainant. 3.00 Lacs came to be credited in the account of the respondent/accused who has been maintaining his account in J&K Bank, Patel Nagar Jammu”. 8. The said application was opposed and resisted by the petitioner herein on the following ground:- “......It is submitted that the non-applicant never received any payment from the complainant. The applicant has made a concocted story in order to mislead the Hon'ble court. Since the trial in the case has been completed and arguments have been heard by the Hon'ble court and the applicant now sensing this fact that there is no substance in the complaint and is likely to be dismissed, the applicant has filed the present application for summoning the record in order to fill up the lacunas in the prosecution case. It is the settled law that there is no provision for summoning any record in order to fill up the lacuna in the case. The complaint was filed by the complainant in the year, 2009 and the trial remained continued for a period of 12 years, the applicant never chooses to seek the indulgence of the Hon'ble court for seeking directions to disclose the information with respect to the bank accounts of the non-applicants and now after final arguments has fifed the present application which is not sustainable under law. The applicant has not shown any reasonable ground for seeking information of the bank account after 12 years and hearing the final arguments. Therefore, present application deserves to be dismissed out rightly”. 9. The learned Magistrate while considering the application (supra) vide impugned order dated 10.11.2021observed as under:- “The moot point for determination at this stage as raised by the Ld. counsel for the non- applicant/accused is that the Section 540 Cr.P.C. pertains to summoning of witnesses and not pertains to summoning of record, more over, the applicant/complainant should have filed the present application on the cross-examination of the applicant/complainant and now the applicant/complainant cannot be permitted to fulfill the lacunas left by him during the trial. I have also considered the argument of the Ld. Sr. counsel for the applicant/complainant that the money from the account of the applicant/applicant has already gone and now it is to be seen whether it goes to the account of the non-applicant/accused or not and is essential to the just decision of the case. The Ld. Sr. I have also considered the argument of the Ld. Sr. counsel for the applicant/complainant that the money from the account of the applicant/applicant has already gone and now it is to be seen whether it goes to the account of the non-applicant/accused or not and is essential to the just decision of the case. The Ld. Sr. counsel has further argued that the record would not become in air and some responsible officer of that Bank' could produce the same and can state the detail of the same. In deciding the moot point aforesaid I have gone through the material on the file especially the application under hand. Admittedly in para No. 4 of the application underhand, it has been averred by the applicant/complainant that the Court may in the interest of justice direct the Manager J&K Bank, Patel Nagar, Jammu to disclose information to the Court as to whether an amount of Rs. 3 Lakhs has been credited in the account of the accused from the account of the complainant and from the aforesaid it can be safely inferred that the application underhand falls within the ambit of Section 540 Cr.P.C. 10. The operative part of the impugned order dated 10.11.2021 reads as under:- “In the case underhand the record pertaining to the money in the shape of an amount of Rs. 3 Lakhs allegedly debited from the account of the applicant/complainant and credited into the Bank account of the accused/non-applicant is essential for just decision of the case and cannot be termed as filling of lacunas left by the applicant/complainant and rejection of this application at this stage may amount to failure of justice to the applicant/complainant. As such, by calling Manager J&K Bank Patel Nagar, Jammu as a witness to produce record pertaining to credit of an amount of Rs. 3 Lakhs in the account of the Harshwardan Singh, Shivam Filling Station, Mishriwala, Jammu applicant/complainant and rejection of this application at this stage may amount to failure of justice to the applicant/complainant. As such, by calling Manager J&K Bank Patel Nagar, Jammu as a witness to produce record pertaining to credit of an amount of Rs. 3 Lakhs in the account of the Harshwardan Singh, Shivam Filling Station, Mishriwala, Jammu applicant/complainant and rejection of this application at this stage may amount to failure of justice to the applicant/complainant. As such, by calling Manager J&K Bank Patel Nagar, Jammu as a witness to produce record pertaining to credit of an amount of Rs. 3 lakhs in the account of the Harshwardan Singh, Shivam Filling Station, Mishriwala, Jammu the account of the applicant/complainant i.e., account No. 1524 on 13.05.2008 and in my humble opinion with the aforesaid no prejudice is going to be caused to the non-applicant/accused as he has an indefeasible right to cross-examine the aforesaid witness and can dispute his deposition in his additional statement under section 342 Cr.P.C. and can lead defence evidence against the deposition”. 11. Now the question would arise as to whether the learned Magistrate had correctly exercised its jurisdiction in passing the impugned order in allowing the summoning of record from the Manager, J&K Bank Patel Nagar, Branch, Jammu with respect to the account of the petitioner as witness to produce the record mentioned above. 12. Section 540 Cr.P.C. gives a power to the Court to summon any person as a witness or examine any person in attendance though not summoned as a witness or recalled and re-examine any person, already examined and the court shall summon and examine or recall and re-examine any person at any stage of enquiry, trial or proceedings and the second part of the said provision makes it mandatory for the Court to 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. The learned Magistrate while dealing with the application (supra) has observed in of the impugned order that the summoning the Manager, J&K Bank Patel Nagar, Branch, Jammu is essential for just decision of the case. 13. A reference to the judgment of the Apex Court in this regard passed in case titled as "Jamatraj Kewalji Govani v. The State of Maharashtra reported in 1968 AIR SC 178, would be relevant and germane herein, wherein the Apex Court in has laid down as following:- “To begin with, we do not accept as sound the argument that Chapter 21 must limit the powers under s. 540.Offences under the Code of Criminal Procedure are tried in different ways according to their gravity. There are thus trials of summons and warrant cases by Magistrates, trials before High Courts and Courts of Session and summary trials. All these trials have their procedure laid down from one step to another till the stage is reached for acquittal or conviction. If the argument advanced on the basis of the procedure laid down in Chapter 21 is accepted there would be no room for the exercise of the power under S. 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there. Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined”. 14. While dealing with the second part of Section 540 Cr.P.C., Their Lordships observed as under:- The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in. words which are oft-quoted: "There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improve so, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improve so may not be answered by contrary evidence on the part of the Crown". There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory J. in Rex v. Dora Harris: "The cases of Reg. v. Chapman (8 C & P. 558) and Reg. v. Holden (8 C & P. 606) establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right”. 15. As is clear from the reading of the Section 540 Cr.P.C., the said Section confers power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and, obligation of the Court provided the just decision of the case. 16. What is to be decided in the instant case is as to whether an amount of Rs. 16. What is to be decided in the instant case is as to whether an amount of Rs. 03 lacs has been credited to the account of the accused/petitioner herein from the account of the complainant Triloki Nath i.e., account No.CD-1524. This fact can be seen by examining the record to be produced before the learned Magistrate and the statement of the Manager, J&K Bank Patel Nagar, Branch, Jammu is necessary for just decision of the case. 17. The learned Magistrate has rightly after having considered the provisions of Section 540 Cr.P.C. and by giving detailed reasons allowed the application of the complainant/respondent herein. 18. The learned Magistrate has passed a reasoned order, same does not suffer from any legal infirmity or impropriety and does not call any interference by this Court. Resultantly, the petition is found to be without any merot, and the same is dismissed. The learned Magistrate shall proceed with the trial of the case and decide the same expeditiously, without granting unnecessarily adjournments to either of the parties.