Dismissed

Ishwar Singh v. Mohd Aslam

Uttarakhand HC6 Mar 2014C482/1249/2010

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. seeking to quash an order rejecting a witness application. The Court held that evidence regarding where or in whose presence money was paid is not material for an offence under Section 138 NI Act, making the witness unnecessary.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; interim order vacated;Magistrate reminded of expeditious trial provision.

Ishwar Singh Vs Mohd Aslam — Cheque Dishonour | Uttarakhand HC (2014)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482) No. 1249 of 2010

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Ishwar Singh^{……. Applicant} versus Mohd. Aslam ……. Respondent

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Mr. K.S. Verma and Mr. R.K.S. Verma, Advocates for the applicant. Mr. M.K. Goyal, Advocate for the respondent.

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U.C. Dhyani, J. (oral)

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The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to quash and set aside the order dated 14.07.2010, passed by learned trial court as well as order dated 22.11.2010, passed by III F.T.C. / Addl. Sessions Judge, Haridwar, in criminal revision no. 255 of 2010. A prayer has also been made that the learned trial court be directed to record the evidence of the witness Nasir Ahmad.

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Complainant (applicant herein) filed a criminal complaint case against the accused (respondent herein) in the court of Chief Judicial Magistrate, Haridwar, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. After recording the statements, the accused was summoned to face the trial. The trial proceeded. When the same was about to be concluded and the criminal case under Section 138 of the Negotiable Instruments Act, 1881 was fixed for arguments, the complainant moved an application under Section 311 of Cr.P.C. for examining his witness Nasir

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Ahmad, whose name was mentioned in the complaint. Learned trial court dismissed such application of the complainant under Section 311 of Cr.P.C. The reasons assigned for dismissal of such application were (a) such an application was moved in the final stages of the proceedings when the case was fixed for arguments (b) sufficient opportunities were already given to the complainant to lead the evidence for a considerable period of time (c) such an application, if allowed, will delay the disposal of the case and (d) such application was devoid of merits.

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The order dated 14.07.2010 was assailed before the revisional court by instituting a criminal revision, which was dismissed on the ground of nonmaintainability, on 22.11.2010.

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Aggrieved against the same, present application under Section 482 of Cr.P.C. was filed by the applicant.

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Before proceeding further, it will be useful to go through Section 311 of the Code of Criminal Procedure. The same reads as under:

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“ 311. Power to summon material witness, or examine person 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

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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 to be essential to the just decision of the case.”

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A reading of the aforesaid Section makes it clear that power of Court to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence of both sides is closed so long as the Court retains seisin of the criminal proceedings. Any person can be summoned as witness or recalled or re-examined at any stage of proceeding where essential. It is settled in law that if the conditions under this Section are satisfied, the Court can call a witness not only on the motion of either the prosecution or the defence, but also it can do so on its own motion. It is thus crystal clear that the Court is empowered to summon any person as a witness at any stage of inquiry, trial or other proceeding.

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Now the next question which arises for the consideration of this Court is – whether there was any justification on the part of the complainant to summon Nasir Ahmad as witness?

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It is settled law that the complaint under Section 138 of the Negotiable Instruments Act, 1881 must contain the following ingredients, viz., (i) that there is a legally enforceable debt; (ii) that the cheque was

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drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt: (iii) cheque so issued had been returned due to insufficiency of funds.

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The complainant is required to prove only what is contained in Section 138 of the Negotiable Instruments Act, 1881, and nothing else. The complainant is not supposed to prove as to where from he collected the money, which was paid to the accused, and in respect of which money, the accused gave a cheque in favour of the complainant. Further, the complainant is also not required to prove in whose presence the cheque was given to the accused. In such a situation, there was no justification for the complainant to have requested the trial court to summon Nasir Ahmad, in whose presence the complainant paid the money to the accused, and accused, in lieu thereof, gave a cheque to the complainant.

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Thus although an application under Section 311 of Cr.P.C. was maintainable before the trial court so long as the Court retains seisin of the criminal proceedings, but there was no need for the complainant to examine such witness, in as much as he was not required to prove in a case under Section 138 of the Negotiable Instruments Act, 1881, as to where from he collected the money and in whose presence he gave such money to the accused.

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This Court is, therefore, unable to accept the contention of learned counsel for the applicant that the witness Nasir Ahmad ought to have been summoned by the trial court in exercise of its jurisdiction under Section 311 of Cr.P.C.

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Application under Section 482 of Cr.P.C., therefore, lacks merit and is accordingly dismissed.

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Interim order dated 31.12.2010, passed by this Court earlier, is hereby vacated.

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Reminding learned Magistrate with the intention of the Legislature, as engrained in sub-section (3) of Section 143 of the Negotiable Instruments Act, 1881, it is provided that the trial shall be conducted as expeditiously as possible and an endeavour shall be made by learned Magistrate to conclude the trial within next six months. [The case is already fixed for arguments].

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(U.C. Dhyani, J.)

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Dt. March 06, 2014. Negi

Ishwar Singh v. Mohd Aslam

Case brief

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Ishwar Singh v. Mohd Aslam

Case brief

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