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2022 (11) TMI 994 - HC - Indian LawsDishonor of Cheque - witness produced by prosecution/complainant, properly examined or not - Section 540Cr. PC - HELD THAT:- It is made clear that as noticed, the application moved by the respondent-accused has been allowed by the learned Magistrate invoking the provisions of Section 540 Cr. PC without being prayed therefor. It is a fact that one of the witnesses sought to be examined by the accused namely Nazir Ahmad Joo is one of the complainants who had also been examined as the complainants’ witness, so is the case of Manager J&K Bank Branch Chadoora who had already been examined as complainants’ witness and that both these witnesses have been subjected to lengthy cross examination by the respondent-accused before they were relieved without any resistance. The respondent-accused had all the liberty to cross examine the witnesses examined by the complainants on all the aspects and even beyond the scope of examination-in-chief, therefore, it appears that the accused either with a motive to delay the proceedings or with a view to harass the complainants, have given the names of complainant Nazir Ahmad Joo and Manager J&K Bank Branch Chadoora to be called as witnesses on his behalf. In the considered opinion of this Court the trial Magistrate on an application moved by the accused-respondent has invoked the provisions of Section 540 Cr.PC without asking for it. The question to be decided by the learned trial Magistrate was as to whether the witnesses examined by the complainants can be asked to appear as witnesses for the defence. Even if the learned Magistrate was of the view that certain clarifications were required to be made by these witnesses while being cross examined and re-examined during trial, it could not be legally tenable to call these witnesses on behalf of the opposite party - It is also not clear as to what the Patwari Halqa Wathora has to prove about the details of the property of the accused when the accused himself can do that and for a complaint under Section 138 N.I Act, the property, if any of the accused-respondent, is not relevant at all. It is held that the witnesses examined by one party cannot be allowed to be examined on behalf of the opposite party at its instance. Learned Magistrate has, thus, erroneously passed the impugned order by misdirecting himself to invoke Section 540 Cr. PC to summon the witnesses already examined by the complainant to be called as witnesses on behalf of the accused-respondent. Learned Magistrate has also not applied his mind as to whether Patwari Halqa Wathora was required to be produced by the accused-respondent so as to prove his property, as the property of the accused-respondent, was not the relevant factor in a complaint under Section 138 N.I.Act. The impugned order thus, suffers from illegality and amounts to abuse of process of court. The impugned order is required to be set aside, partially, the impugned order is resultantly quashed to the extent of calling Nazir Ahmad Joo, Manager J&K Bank Branch Chadoora and Patwari Halqa Wathora, as witnesses on behalf of the accused-respondent - Petition disposed off.
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