Om Prakash Tripathi vs Mamta Yadav

Brij Kishore Dube, J.—Heard on the question of admission and perused the record. This petition u/s 482 of Code of Criminal Procedure, 1973 (for short, the ''Code'') is preferred by the petitioner herein/accused against the impugned order dated 27/02/2013 passed by the Sessions Judge, Guna in Criminal Revision No. 34/2013 whereby affirmed the order dated 06/01/2013 passed by the Judicial Magistrate, First Class, Guna in Criminal Case No. 684/2008 by which an application u/s 245(2) of the Code so far as it relates to calling the Head Constable, Suresh Sharma for examining him as a defence witness has been dismissed.

The short facts of the case are that on the basis of compliant filed by the respondent herein/complainant, Mamta Yadav, the petitioner herein/accused is facing a criminal trial bearing Criminal Case No. 684/2008 for the offence punishable u/s 138 of the Negotiable Instruments Act before the Judicial Magistrate, First Class, Guna. An application u/s 245(2) of the Code was submitted by the accused on 22/11/2012 for calling the Head Constable, Suresh Sharma, Branch Manager of Gada Cooperative Bank and the husband of the complainant to examine as the defence witnesses. The application was partly allowed by the Trial Court and it is directed that the Branch Manager and husband of the complainant be called for as defence witnesses, however, the prayer for calling the Head Constable was not allowed. Being aggrieved thereof, a Criminal Revision was preferred by the accused which was dismissed by the impugned order, hence this petition.

Learned counsel for the petitioner submits that the cheque in question was lost, therefore, the accused made a complaint on 19/09/2002 in the Police Station, Kotwali, Guna and the same was received by the Head Constable, Suresh Sharma. Thus, to prove the fact of lodging the complaint in regard to missing cheque, the accused wanted to call the Head Constable, Suresh Sharma as defence witness. It is further submitted that the learned Trial Court allowed the prayer for calling the other two witnesses but failed to consider the prayer for calling the Head Constable as defence witness and has not mentioned the specific reason for rejection of the prayer but passed the order in a mechanical manner.

From a bare perusal of the impugned order dated 06/01/2013 passed by the Trial Court, it is transpired that the Trial Court allowed the prayer of the petitioner herein/accused for calling the other two witnesses in defence but did not assign any reason for rejecting the prayer for calling the Head Constable, therefore, it is clear that there is jurisdictional error apparent on the face of the record in passing the impugned order by the Trial Court and affirmed by the Revisional Court.

In view of the aforesaid, considering the submissions of the learned counsel for the petitioner and facts of the case but without going into merits of this case, the impugned order dated 06/01/13 passed in Criminal Case No. 684/2008 by the Trial Court and the order dated 27/02/2013 passed in Cr. Revision No. 34/2013 by the Revisional Court are set aside to the extent of rejecting the prayer of the petitioner herein/accused to call the Head Constable, Suresh Sharma and the Trial Court is directed to grant opportunity to the petitioner to examine aforesaid witness also as defence witness by summoning him and thereafter, proceed further in the matter in accordance with law.

With the aforesaid direction, petition stands disposed of. Certified copy as per rules.