CIVIL APPEAL 497 of 2010 on 13 April 2010

1. The State of Jharkhand2.Kauleshwar Sahu.... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA

---------For the Petitioner : Mr. D. K. Chakarverty, Advocate For the State: A.P.P.For the O.P. No.2: Mr. Awnish Shankar, Advocate

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09/Dated: 15th December, 2014

This Revision Application is directed against the order dated 13.04.2010 passed by the learned Judicial Magistrate, 1[st] Class, Hazaribagh in Complain Case C-427 of 2007 (T.R. No.611 of 2010) whereby the application dated 07.04.2010 of the petitioner for issuance of summon to the witness has been rejected.

2. Mr. D. K. Chakarvery, learned counsel for the petitioner has submitted that the complainant's case is that the petitioner had issued three cheques on 02.10.2004 and when the cheques were presented in the bank, the same were dishonoured as 'Insufficient Funds' in the account of the drawer. It has been argued by the learned counsel for the petitioner that in fact the petitioner had opened his current account with the Bank of Baroda, Hazaribagh on 28.03.2005 and the cheques were issued by the bank in the name of the petitioner on 20.06.2005; that the material evidence regarding the date of opening of the current account and issuance of cheques are necessary for proper appreciation of the case of the defence, but the trial court without considering the said aspect has rejected the prayer for issuance of summons against the Branch Manager, Bank of Baroda, Hazaribagh without appreciating the fact that evidence of the Branch Manager is essential to bring on record the said material fact for proper adjudication.

3. Mr. Awnish Shankar, learned counsel appearing on behalf of the O.P. No.2 has submitted that the court below has rightly rejected the prayer for issuance of summons against the Branch Manager, Bank of Baroda, Hazaribagh.

4. Heard. Admittedly, the complainant's case is that on 01.10.2004 the cheques were issued by the petitioner to the complainant. It is the assertion of the petitioner that he opened his current bank account with the said bank on 28.03.2005 and the cheque book were issued to him on 22.06.2005. Section 311 of the Cr.P.C empowers the court to exercise the discretionary power at any stage of the trial or proceeding and the said discretionary power is to be exercised if it appears to the court that the examination of a person or evidence is essential for the just decision of the case. The power under Section 311 of the Cr.P.C can be invoked either by the prosecution or the defence or even by the court suo motu as the object and the underlying principle is to bring on record the valuable evidence either of the prosecution or the defence so that the court can determine and ascertain the truth for passing necessary order on conclusive evidence. The Branch Manager, Bank of Baroda, Hazaribagh appears to be a material witness with respect to the plea of the defence. His non-examination will prejudice the defence and it will be against the principle of fair trial.

5. In the given facts and circumstances, the impugned order dated 13.04.2010 passed by the learned Judicial Magistrate, 1[st] Class, Hazaribagh in Complain Case C-427 of 2007 (T.R. No.611 of 2010) is hereby, set aside and the petitioner is at liberty to file a fresh application and the court below shall issue summons for examination of the Bank Manager, Bank of Baroda, Hazaribagh as a witness of the defence.

6. With the said direction and observation, the Cr. Revision application is, hereby, allowed.Revision application is, hereby, allowed.

(AMITAV K. GUPTA, J.)