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2022 (6) TMI 137 - HC - Indian LawsDishonor of Cheque - the trial Court by refusing to issue summons to the witnesses of the accused petitioner (DW) had denied the constitutional right of the accused to defend himself in a criminal proceeding - HELD THAT:- From a plain reading of Sub Section (2) of Section 243 Cr.P.C it would emerge that after the accused in a case has entered upon his defence and applies to the Magistrate to issue process for compelling the attendance of any witness for examination or cross-examination or for production of any document or other things, it is obligatory on the part of the Magistrate to issue such process. Under Sub Section (2) Magistrate can refuse to issue such process on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Moreover, such ground should be recorded in writing by the Magistrate. The reasons assigned by the trial Court as well as by the learned Sessions Judge for refusing the prayer of the accused for issuing summons to his witnesses are not acceptable in view of the law laid down by the Apex Court in the cases MRS. KALYANI BASKAR VERSUS MRS. M.S. SAMPORNAM [2006 (12) TMI 545 - SUPREME COURT] and T. NAGAPPA VERSUS Y.R. MURALIDHAR [2008 (4) TMI 789 - SUPREME COURT]. The petitioner is an accused under Section 138 N.I Act punishment of which may extend to imprisonment for a term up to two years or with fine which may extend to twice the amount of cheque or with both. Therefore, he should be allowed fair and proper opportunity to prove his innocence. Adducing evidence in support of his defence is a valuable right of him which cannot be denied to him. If for non submission of the true particulars of the witnesses, the trial Court felt it difficult to issue summons to the defence witnesses, trial Court could have asked the accused to submit proper particulars of the witnesses. One of the reasons assigned by the trial Court is that in a complaint case it is the duty of the accused to produce the defence witnesses on his own and court cannot issue summons to the defence witnesses. It is true that accused should not be allowed to unnecessarily protract the trial or request the Court to issue summons to the witnesses whose evidence would not at all be relevant for deciding the case. In such situation the trial Court may discard the petition of the accused on the ground of vexation and delay. In the case in hand, no such ground has been assigned by the trial Court for refusing to issue summons to the witnesses of the accused - the impugned order passed by the learned Sessions Judge affirming the order of the trial Court stands set aside. The criminal revision petition is disposed of.
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