Smt. Sitabai Paunikar vs Shri Vilas Saranjame

S.S. Shinde, J.—This application takes exception to order dated 26.06.2007 passed below Exh.-65 by Judicial Magistrate First Class and Special Court u/s 138 of the Negotiable Instruments Act at Nagpur.

Brief facts of the case are as under:

The applicant herein, who is original complainant, filed complaint u/s 138 of the Negotiable Instruments Act being Criminal Complaint No. 5094/2005 in respect of Cheque No. 4083 dated 01.12.2002 of State Bank of Travancore, branch at Congress Nagar, Nagpur for Rs. 3,90,000/-issued by accused/non applicant. The complainant is represented through her Power of Attorney holder Prabhakar Paunikar in the said complaint. He is known of all the facts of the said transaction being husband of the complainant.

On behalf of the complainant, her Power of Attorney had entered into witness box and even he was cross-examined at length by the accused. Accused also examined himself in defence and also deposition of witness on behalf of accused was recorded and both were cross-examined by the complainant.

The accused had filed list of witnesses on his behalf before the trial Court on 20.03.2007. In the said list, complainant Sitabai Paunikar is shown as witnesses by the accused. The complainant was served with witness summons to appear on 26.06.2007 before the trial Court as witness on behalf of the accused. The complainant filed an application Exh.-65 for recalling of the order in respect of issuance of witness summons before the trial Court. The trial Court rejected said application. The said order came to be passed on 26.06.2007 and the matter was adjourned to 05.07.2007 and accused filed pursis that he does not want to lead further evidence and closed his side by making assertion in the pursis that adverse inference can be drawn against the complainant as she was not willing/refused to enter the witness box.

It is the case of the complainant that when the order was passed below Exh.-65, the complainant applied for certified copy of the order to challenge the same on 27.06.2007 but the certified copy of the order was not received till 05.07.2007 and on 05.07.2007 the accused filed pursis before the trial Court closing his side and the matter was fixed for arguments on 16.07.2007. Order dated 26.06.2007 passed below Exh.-65 is impugned in this application.

Learned Counsel for the applicant submitted that order below Exh.-65 is passed without considering the submissions of the applicant and also the provisions of Section 243 of the Code of Criminal Procedure. It is further submitted that learned trial Court had considered the aspect that without any formal application, issuance of witness summons to complainant is not permissible and finding of the trial Court is very essential to note that the complaint is unwilling to enter the witness box and not ready to subject herself to cross-examination. It is further submitted that the learned trial Court failed to understand the fact that when the accused wants to lead evidence of any witness he would not cross-examine him, rather, it would be examination-in-chief of witness on his behalf is to be recorded. It is further submitted that the order passed by the Magistrate is perverse manifestly on the basis of record, illegal, without complying with the provisions of law. It is further submitted that Section 243 of the Code of Criminal Procedure clearly states that if accused wants to compel attendance of any witness for the purpose of examination or cross-examination or production of any document or any other thing, the Magistrate shall issue such process except the Magistrate comes to conclusion that such application is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. It is further submitted that proviso to Section 243 contemplates that when the accused had cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section unless the Magistrate is satisfied under this section that it is necessary for the ends of justice. It is further submitted that Section 243 contemplates attendance of witness and it is apparent that under the Code of Criminal Procedure, the complainant and witnesses are two identities in one complaint case. Therefore, it is submitted that the trial Court has erred in considering provisions of Section 243 of the Code of Criminal Procedure and came to the conclusion that issuance of witness summons is legal and, there is no need to give any reason for the same. It is further submitted that the complainant was already examined and cross-examined in the complaint and there is no case shown for leading evidence of the complainant again on behalf of the accused. Thus, the Magistrate came to the conclusion that he is satisfied for the ends of justice to issue witness summons and the said satisfaction is not expressed rather it is arbitrary, illegal and against the provisions of Section 243 of the Code of Criminal Procedure. It is further submitted that no doubt words any witness in Sub-section (2) of Section 243 of the Code of Criminal Procedure would not include the complainant. It is further submitted that the complainant cannot be resummoned u/s 243 and Sub-section (2) of Section 243 the words any witness would not include the complainant. It is further submitted that on this ground, learned Judicial Magistrate First Class should not have issued summons to the complainant. It is further submitted that the Magistrate has not exercised jurisdiction sparingly and order passed below Exh.-65 makes out a case that non attendance of the complainant for cross-examination according to the learned trial Court is unwillingness to step into witness box and thus, it is necessary that such observation of the learned trial Court needs to be quashed and set aside. It is further submitted that order impugned also deserves to be quashed and set aside. Learned Counsel invited my attention to contents of the application and grounds therein, annexures thereto and impugned order is not sustainable in law and the same deserves to be quashed and set aside.

Learned Counsel appearing for non applicant submitted that it may still be open for the applicant to address the learned trial Court since, the learned trial Magistrate has not drawn any adverse inference yet. It is further submitted that the provisions of Section 243 of the Code of Criminal Procedure are not attracted in the present case and Section 243 operates in warrant case. Learned Counsel placed reliance on provisions of Sub-section (2) of Section 254 of the Code of Criminal Procedure and submitted that emphasis in the said Section is on the words any witness. Therefore, the learned Counsel would submit that had it been the intention of Legislature to exclude the complainant from the ambit of the words any witness then in that event the Legislature would have stated so clearly. The Legislature must be presumed to have consciously and advisedly used widest possible term by saying any witness. In tune with the settled principles of statutory interpretation, the words being plain and unambiguous, must be given full effect. Therefore, according to learned Counsel, words any witness will include the complainant as well. It is submitted that if the arguments of the applicant is accepted, then in that event it will be reading the words except complainant after the words any witness in Sub-section (2) of Section 254 of the Code of Criminal Procedure and this will amount to reading words, which do not exist in the provisions. Furthermore, it will also amount to entering the domain of the Legislature. Learned Counsel, in support of his contentions, placed reliance on the reported judgment of Hon''ble Supreme Court in Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, and more particularly para 9 of the said judgment. On the basis of the said judgment, the learned Counsel would submit that the Hon''ble Apex Court has said that it must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel (1891) A. C. 531 (G) that it is not competent to any court to proceed upon the assumption that the Legislature made a mistake. The learned Counsel would further submit that, the Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner 6 MOO, P.C.1(H),aid the Legislatures defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is, as said by Lord Russell of Killowen in Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 for others than the Courts to remedy the defect.

It is further submitted that it is settled position of law that it may not be possible to read the words, except complainant after the words, any witness in Sub-section (2) of Section 254.

Learned Counsel further submitted that in reported judgment of Patna High Court in Sri Awadh Kishore Singh and Another Vs. Sri Brij Bihari Singh and Others , Division Bench of Patna High Court has held that a party cannot be debarred from examining its adversary. In the said judgment, in para 16, it is stated that, No provision could be brought to our notice on behalf of any of the parties to show that a party is debarred from examining its adversary as a witness on his behalf. A plaintiff can examine any witness he so likes the witness may be a stranger, may be a man of his own party or party himself or may be a defendant or his man....

Learned Counsel further placed reliance on para 8 and 9 of reported judgment of the Hon''ble Supreme Court in T. Nagappa Vs. Y.R. Muralidhar, and submitted that the fair trial includes fair and proper opportunities allowed by law to prove innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the Courts should be jealous in seeing that there is no breach of them.

It is further submitted by the learned Counsel that it is pertinent to note that the decision reported in B.K. Linganna and Ors. v. State of Mysore AIR 1954 Mysore 12 (Vol. 41 C. N. 5), Sreedhar Pillay and Others Vs. P.J. Alexander and Another, and Mrs. Madhu Bansal Vs. Shri. Dinesh Kumar, wherein it has been consistently held that the provisions contained in Section 254 are of wider import than the other provisions namely Section 243 and Section 233. Attention of this Court is also invited to the decision reported in Ramkrishna Gochhikar and Another Vs. Gadhadhar Pujapanda, regarding nature of the evidence recorded in exercise of Section 254(2) of the Code of Criminal Procedure.

According to learned Counsel for non applicant, decision of the learned Single Judge of Kerala High Court in Kamarudheen Vs. Shoukkathali, will have to be examined. In this decision in para 4, the learned Single Judge of the Kerala High Court held that, It is not just and proper to compel a person to be witness against himself. As a matter of right, a party cannot have the opposite party examined as a witness. Immediately in the next paragraph, the learned Judge says, Even if it is assumed that the words, any witness in Sub-section (2) of Section 243 could include the complainant also. It is apparent that the learned Single Judge of Kerala High Court has not expressed a final opinion as to whether words, any witness will include complainant or not. Furthermore, with deepest respect, it is submitted that the reasoning adopted by the learned Single Judge does not appear to be correct. Moreover, the learned Single Judge did not take into account the fact that the complainant would still remain a prosecution witness. Be that as it may, had the Legislature intended that the words any witness would not include the complainant, the Legislature would have clearly said so. The learned Single Judge did not take into account legal prescription in Nalinakhya Bysack v. Shyam Sunder Haldar and Ors. (supra). Even otherwise, it appears from the view expressed by the learned Single Judge that, as a matter of right, an accused cannot call the complainant a witness. Therefore, it appears that the learned Single Judge is not laying down any firm opinion in this regard. In Thomas Vs. Vijayakumari, ; another Single Judge of Kerala High Court followed decision in C. K. Kamrudheen (supra) and held that since the words, any witness were used in Section 254 as well, the same interpretation as made in C. K. Kamrudheens case would apply.

Learned Counsel further submitted that two decisions of the Kerala High Court, cited supra cannot be said to be laying down correct law in view of the fact that several settled principles were overlooked there under. The decision in Sri Awadh Kishre Singh and Anr. (supra) was not noticed. The fact that, Section 254 is of wider amplitude than Section 243, was also not taken into account. Moreover, the reasoning in C. K. Kamrudheen (supra) case is contrary to Article 20 of the Constitution of India which gives such protection only to an accused and not to the complainant. The learned Counsel would submit that this Court may not place reliance on the reported judgment of Kerala High Court. It is further submitted that in the instant case, the non applicants case is that he was a guarantor for the transaction between complainant and one Abhay Vaidya. The case is that the cheque in question was given only as security and it was never intended to be encashed by the complainant. His case is that there was no legally recoverable debt and Section 138 of the Negotiable Instruments Act is not attracted. In this backdrop, non applicant/accused will be required to rebut the presumption u/s 139 of the Negotiable Instruments Act. The burden is heavy and therefore considering the overall factual background, it is not necessary to examine the complainant personally. It is pertinent to note that there is no allegation muchless proof that non applicant accused has attempted to delay the proceedings in any manner. According to learned Counsel, the non applicant had cited the complainant as a witness in his list of witnesses. It is further submitted that the trial Court, without any delay, has issued summons to the complainant immediately after his deposition was completed. Thus, in the facts and circumstances of the case, there is no malafide intention on the part of the non applicant/accused and hence, the learned trial Court was fully justified in issuing the witness summons. It is further submitted that if applicants interpretation is accepted, this right of the accused to call witness may become redundant in given situation. For instance, if complainant is only witness examined by prosecution, then procedure under Sub-section (2) of Section 254 cannot be adopted at all. This will seriously injure the right of the accused to defend himself. Such anomalous situation can be best avoided by rejecting the submissions of the applicant. The learned Counsel further submitted that application may be rejected.

I have heard learned Counsel for the applicant and learned A.P.P. at length and having perused the contents of the application, annexures thereto, reply filed by non applicant. According to learned Counsel appearing for the applicant, the relevant section in the present case is Sub-section (2) of Section 243 of the Code of Criminal Procedure. Section 243(2) of the Code of Criminal Procedure reads as under:

Evidence for defence.

(1) ...

(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

Section 243 of the Code of Criminal Procedure relied upon by the applicant is included in chapter XIX, which is titled as Trial of warrant-cases by Magistrates. It means that even the provisions of Sub-section (2) of Section 243 would be applicable in the trial of warrant cases by the Magistrate. The case in hand is not a warrant case. However, on plain reading of Sub-section (2) of Section 243 clearly reveals that there is no any explanation to Sub-section (2) or there is nothing in Sub-section (2) to come to the conclusion that the words any witness would not include the complainant. Therefore, on plain reading of Sub-section (2) of Section 243, it clearly appears to me that the Legislature having not specified and expressly mentioned in the said Section that any witness in Sub-section (2) of Section 243 would not include the complainant.

According to learned Counsel appearing for non applicant, the relevant section in the present case would be Section 254 of the Code of Criminal Procedure. Sub-section (2) of Section 254 of the Code of Criminal Procedure reads as under:

Procedure when not convicted.

(1) ...

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

Section 254 is included in Chapter XX of the Code of Criminal procedure and the title of the chapter is , Trial of summons-cases by Magistrates. Therefore, it appears that since case in any summons case the provision of Sub-section (2) of Section 254 is applicable. On plain reading of Sub-section (2) of Section 254, there is nothing to indicate that words used in the said Section any witness, does not include complainant. Therefore, on plain reading of said section, it cannot be said that the word any witness used in Sub-section (2) of Section 254 does not include complainant.

It would be useful to refer to reported judgment of Patna High Court, in case of Sri Awadh Kishre Singh and another (supra) Their Lordships in para 16 have held as under:

No provision could be brought to our notice on behalf of any of the parties to show that a party is debarred from examine its adversary as a witness on his behalf. A plaintiff can examine any witness he so likes the witness may be a stranger, may be a man of his own party or party himself or may be a defendant or his man...

Therefore, what follows from above observation in aforesaid judgment is that even adversary including the complainant can be examined as witness.

Learned Counsel for the applicant has placed reliance on two judgments of Kerala High Court in the case of C. K. Kamarudheen and Thomas Thomas Kutty (supra).

In C.K. Kamarudheen (supra) the Kerala High Court in para (4) held that;

According to me, the words any witness in Sub-section (2) of Section 243 would not include he complainant...

Reading of said paragraph, it appears to me that the Court has not recorded any finding or reason to hold that the words any witness in Sub-section (2) of Section 243 would not include the complainant. On reading of para 5 of the said judgment, the learned Single Judge has further proceeded on the footing that the words any witness in Sub-section (2) of Section 243 even if includes the complainant, in that case also, accused is not entitled to recall the complainant to examine him his defence witness in view of proviso to Sub-section (2) of Section 243 of the Code of Criminal Procedure.

As stated earlier, the provisions of Section 243 of the Code of Criminal Procedure would necessary be attracted in warrant case and not in summons case. That apart, in the light of judgment of the Division Bench of the Patna High Court in Sri Awadh Kishre Singh and Anr. (supra), it is difficult to accept the view expressed by Kerala High Court that any witness in Sub-section (2) of Section 243 would not include complainant. As already stated hereinabove on plain reading of Sub-section (2) of Section 243 of Code of Criminal Procedure, it cannot be said that the Legislature intended the view expressed by Kerala High Court.

On careful reading of Sub-section (2) of Section 254 also, it cannot be said that view expressed by Kerala High Court was intended by Legislature while framing the said section. On plain reading of the section, the view expressed by Kerala High Court does not find place. In the case of Thomas Thomas Kutty (supra), the view taken in the case of C.K. Kamarudheen (supra) is reiterated.

I find considerable force in the arguments of learned Counsel appearing for non applicant that the Court must proceed on the footing that the Legislature intended what it said. Even if, there is some defect in phraseology used by the Legislature, the Court cannot, as pointed out in Crawford v. Spooner 6 MOO. p.c. 1(H) aid the Legislatures defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act.

At this juncture, it would be appropriate and useful to extract relevant extract of para 9 from the reported judgment in the case of Nalinakhaya Bysack (supra), which is as under:

It must always be borne in mind, as said by Lord Halsbury in ComMr. for Special Purposes of Income Tax v. Pemsel (1891) A. C. 531 (G) that it is not competent to any court to proceed upon the assumption that the Legislature made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner, 6 MOO, P. C. 1 (H), aid the Legislatures defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is, as said by Lord Russell of Killowen in Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 for others than the Courts to remedy the defect....

In the present case, the applicant herein filed application for recalling the witness summons. In the said application, it is stated that the complainant had already tendered her evidence on 16.02.2007 through power of attorney i.e. her husband and even power of attorney cross-examined by accused on 16.02.2007 vide Exh.-50. It is further stated in paragraph 3 that the accused had also tendered only evidence in the matter on 21.04.2007 and cross-examined by the complainant. It is further mentioned that the accused had admitted that power of attorney-Prabhakar Paunikar was aware about money transaction between the complainant, Abhay Vaidya and accused. That even power of attorney who is husband of the complainant, was witness to document of Memorandum of Understanding. In para 4 of the said application, it is stated that accused had already cross- examined the complainant. No application is filed by the accused on record praying for permission to issue witness summons and witness summons is issued without seeking permission from the Court is illegal and against the procedure contemplated under the Code of Criminal Procedure. In para 4, it is specifically averred that the witness summons needs to be recalled as it is just to delay the matter and for the purpose of vexation and cross-examining the complainant.

It appears that the said Court passed following order on 26.06.2007:

Perused application. The witness summons is issued on the request of the accused. Though there is no formal application on the record but still accused has paid process and accordingly witness summons is issued which means the court has implied not granted permission to the accused to examine the complainant. From this application it seems that complainant is un-willing to step in the witness box and not ready to subject herself for the cross-examination. But, that cannot be the ground for recalling of the witness summons.

Hence application stands rejected.

On careful perusal of the impugned order, it appears that the Court has not taken into consideration all the contentions raised by the applicant and order falls short of reasons.

Though learned Counsel appearing for the non applicant submitted that right of accused to adduce evidence is valuable right and denial of that right means denial of fair trial and on careful perusal of documents placed on record along with application, it appears that power of attorney of the complainant who is her husband, was examined and again he was cross-examined. Therefore, it is not the case that non applicant did not get opportunity to cross-examine the complainant. In case there is no opportunity at all to adduce the evidence or to cross-examine the complainant, in that case non applicant is right in contending that opportunity is not given to adduce the evidence. Though learned Counsel for non applicant has contended that there is no allegation in the application that request of issuing the summons to the complainant is not for delaying the proceedings, on careful perusal of para 4 of the application below Exh.-65, it is clearly mentioned by the applicant that the witness summons needs to be recalled as is issued just to delay the matter and for the purpose of vexation and defeating the ends of justice. Therefore, on careful perusal of the impugned order, it is not having sufficient reasons for rejecting the application. That apart, the complainant is already examined and cross- examined by accused and further examination or cross-examination would result into delaying the proceedings and also harassment of the complainant.

It prima facie appears that non applicant issued summons just to delay the proceedings. It is also relevant to mention that there is no any application filed on record and no permission is sought prior to issuing of the witness summons.

In the facts and circumstances of this case and in view of the fact that the complainant is already examined and cross-examined, issuance of witness summons was unwarranted. Hence, the impugned order below Exh.-65 is quashed and set aside.

Rule made absolute and application is allowed in terms of prayer Clause (i) and disposed of.