Ashaq Zia Dar vs Ghulam Mohi Ud Din Mir
2021 Latest Caselaw 1657 j&K/2

                                                           Sr. No.41
                                                           Suppl. 41.

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR


                         CRMC No.507/2018
                              C/W
                         CRMC No.509/2018


ASHAQ ZIA DAR                                   ... PETITIONER(S)

            Through: - Mr. Syed Sajad Geelani, Advocate.

Vs.


GHULAM MOHI UD DIN MIR                         ...RESPONDENT(S)

            Through: - Mr. Shafqat Nazir, Advocate.


CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                               JUDGMENT

22.12.2021

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.

c/w CRMC No.509/2018

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

c/w CRMC No.509/2018

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.

c/w CRMC No.509/2018

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.

(Sanjay Dhar) Judge Srinagar 22.12.2021 "Bhat Altaf, PS"

                                              Whether the order is speaking:       Yes/No
                                              Whether the order is reportable:     Yes/No




MOHAMMAD ALTAF BHAT
2021.12.23 14:27
I attest to the accuracy and
integrity of this document