Ashaq Zia Dar vs Ghulam Mohi Ud Din Mir

Sanjay Dhar, J

1) Petitioner, it appears, had filed two separate complaints for offence under Section 138 of Negotiable Instruments Act against the respondent alleging dishonour of two different cheques before the Court of Judicial Magistrate, 1st Class, Sopore. One complaint was registered as file No.36/F whereas other one was registered as file No.37/F. The date of institution of both the complaints is same. On 02.05.2018, two identical but separate orders came to be passed in both the aforesaid complaints whereby evidence of the petitioner/complaint was directed to be closed. The petitioner has challenged both these orders by way of two petitions under Section 561-A of J&K Cr. P. C.

2) The grounds urged in both the petitions impugning the aforesaid two orders are identical. It is contended that learned Magistrate has passed the impugned orders under a bonafide mistake and observed that all the listed witnesses have been examined though fact of the matter is that the complainant in both the complaints was yet to be examined. It is contended that because a criminal court does not have jurisdiction to review its own orders, as such, petitioner has been compelled to file the instant petition for invoking the jurisdiction of this Court under Section 561-A of J&K Cr. P. C. It is further contended that if the impugned orders are allowed to stand, then it will cause grave prejudice to the petitioner/complainant and it would lead to failure of justice.

3) I have heard learned counsel for the parties and perused the record of the case including the trial court record.

4) A perusal of the record reveals that the petitioner had filed two complaints against the respondent, one in respect of dishonour of cheque amounting to Rs.1.40 lacs and other in respect of dishonour of cheque for an amount of Rs.2.00 lacs. In both the complaints the complainant besides citing himself as a witness had also cited Manager/official of SBI Branch office Sopore and any other witness with permission of the Court, as witnesses to the complaint.

5) It appears that the trial court has recorded statements of witnesses but the statement of complainant as a witness in support of his case has not been recorded in both the complaint cases. Vide the impugned orders, the learned trial court has observed that from a perusal of the file it is revealed that list of witnesses cited in the complaint stands exhausted, as such, evidence of the complainant is closed without realizing the fact that statement of the complainant was yet to be recorded. It appears that at the time of presentation of complainants, the preliminary statement of the complainant was recorded and the same has been mistaken by the learned trial court as the statement of the complainant recorded during trial of the complaints. This might have misled the trial court in assuming that list of witnesses of the complainant stands exhausted.

6) From the forgoing discussion, it becomes clear that it is a case of bona fide error on the part of learned trial Magistrate which has led to the closure of complainant's evidence. If the impugned orders are allowed to stand, then it will result in failure of justice, inasmuch as a vital piece of evidence in the shape of statement of the complainant would not be available before the trial court though the same is absolutely necessary for arriving at a just decision.

7) Having regard to the importance of statement of a complainant in a cheque bounce case, even the Magistrate, on his own motion or on the motion of the complainant, could have exercised powers under Section 540 of J&K Cr. P. C and called the complainant for recording his statement so as to arrive at a just decision of the case.

8) For what has been discussed hereinbefore, this Court is of the view that shutting out the evidence complainant without recording statement of the complainant would result in failure of justice and, as such, this is a fit case where this Court should exercise its jurisdiction under Section 561-A of J&K Code of Criminal Procedure for securing the ends of justice.

9) Accordingly, both the petitions are allowed and the impugned orders dated 02.05.2018 are set aside. In case the trial court has proceeded to record evidence of the accused, in that event the trial court shall proceed to record statement of the complainant and afford an opportunity to the accused to cross examine him with a further opportunity to produce any other evidence in defence. This order shall take effect only if the proceedings before the trial court are still pending.

10) Copy of this order be sent to the learned trial court for information and compliance.