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TMI Blog2022 (8) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 filed the present application which is not sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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, Shivan 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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. words which are of quoted: "There is no doubt that the general rule is that where the Crown begins its case l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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