Kerala High Court
Shibu T. Varghese vs Mary George on 28 October, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:80624
CRL.MC NO. 9638 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 28TH DAY OF OCTOBER 2025 / 6TH KARTHIKA, 1947
CRL.MC NO. 9638 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 23.09.2025 IN ST
NO.2143 OF 2020 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -
II, KOTHAMANGALAM
PETITIONER/S:
SHIBU T. VARGHESE
AGED 56 YEARS
S/O. VARGHESE VARKEY, THEKKUMPURATHU HOUSE,
KOTHAMANGALAM P.O., ERNAKULAM DISTRICT, PIN -
686691
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
SMT.NEENA ELISABATH ANTONY
SMT.ANAGHA KRISHNA
RESPONDENT/S:
1 MARY GEORGE
W/O GEORGE JOSEPH, PANDARAPARAMPIL HOUSE, MAMBRA
P.O, NEAR VAPARAMBU KAPELA, KORATTY WEST, PIN -
680308
2 M/S. KLM NIDHI LIMITED
KLM TOWERS, COLLEGE ROAD, REP. BY POWER OF ATTORNEY
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2
HOLDER, MRS. SREERANJINI R., W/O. VINOD H., AGED 32
YEARS, RESIDING AT EDAPPURYEDATHU CHALI HOUSE,
ENANALLOOR P.O., KALAMPOOR ERNAKULAM DISTRICT, PIN
- 686664
3 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULUM, PIN - 682018
OTHER PRESENT:
PP SRI SANAL P RAJ
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.10.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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3
C.S.DIAS, J.
--------------------------------------------------
CRL.MC NO. 9638 OF 2025
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Dated this the 28 day of October, 2025
th
ORDER
Aggrieved by the order summoning the petitioner as
a defence witness in S.T.No. 2143/2020 by the Court of
the Judicial First-Class Magistrate-II, Kothamangalam,
this criminal miscellaneous case is filed.
Facts in brief:
2. The 2nd respondent company has filed the above
complaint against the 1st respondent, alleging the
commission of an offence punishable under Section 138
of the Negotiable Instruments Act, 1881 ('N.I.Act'). At
the defence evidence stage, the 1 st respondent (accused)
filed a list of witnesses, seeking to summon the Branch
Manager of a company and the petitioner, an erstwhile
director of the complainant company, as her witnesses.
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The learned Magistrate issued summons to both the
witnesses. While witness No. 1 was examined as DW1,
the petitioner appeared through Counsel and objected to
being summoned as a defence witness on the ground that
he was a former Director of the complainant. The learned
Magistrate rejected the objection and issued a bailable
warrant against the petitioner. The petitioner contends
that orders issuing a summons and warrant are patently
erroneous and are liable to be set aside.
Submission
3. Sri. Rinny Stephen, the learned counsel for the
petitioner, contends that the learned Magistrate has
erred in summoning the petitioner without the accused
filing an application as contemplated under Section 277
of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for
short, 'BNSS'). He also submits that an accused cannot
summon the complainant or its representative as a
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defence witness in view of the law laid down by this
Court in Kamarudheen v. Shoukkathali [2001 KHC
747], Thomas v. Vijayakumari [2002 KHC 150],
Shobha Rani v. State of Kerala and others [2018 (2)
KHC 73], and KMLM Chits India Ltd v. Siji Bijeesh
[2023 (1) KLD 515]. According to the learned Counsel,
the learned Magistrate has summoned the petitioner
without applying his mind to the law laid down in the
above-referred decisions. Therefore, the orders
summoning and subsequently issuing a bailable warrant
against the petitioner are unsustainable in law.
Consideration:
4. The contention of the petitioner that an application
is filed to summon a defence witness, in my view, is
untenable for the following reasons.
5. Section 143 of the N.I.Act mandates that all
offences under Chapter XVII are to be tried summarily,
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and it reads thus:
"143.Power of Court to try cases summarily. ―(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), all offences under this Chapter shall
be tried by a Judicial Magistrate of the first class or by a
Metropolitan Magistrate and the provisions of sections 262 to
265 (both inclusive) of the said Code shall, as far as may be,
apply to such trials:
Provided that in the case of any conviction in a summary trial
under this section, it shall be lawful for the Magistrate to pass a
sentence of imprisonment for a term not exceeding one year and
an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the
course of, a summary trial under this section, it appears to the
Magistrate that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may have to be
passed or that it is, for any other reason, undesirable to try the
case summarily, the Magistrate shall after hearing the parties,
record an order to that effect and thereafter recall any witness
who may have been examined and proceed to hear or rehear the
case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as
practicable, consistently with the interests of justice, be
continued from day to day until its conclusion, unless the Court
finds the adjournment of the trial beyond the following day to be
necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as
expeditiously as possible and an endeavour shall be made to
conclude the trial within six months from the date of filing of the
complaint."
6. As per the above provision, the Learned
Magistrate is bound to follow the procedure for summary
trial as laid down under Section 262 Code of Criminal
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Procedure, corresponding to Section 285 BNSS, and not
under Section 277. It is only if the Magistrate feels that a
sentence of imprisonment for a term exceeding one year
may have to be passed, and it is undesirable to try the
complaint summarily, then he is to proceed in the manner
provided under the Cr.P.C.
7. Even in the trial of a warrant case by the
Magistrate - whether instituted on a police report or
otherwise under Chapter XX of the BNSS, as well as in
the trial of a summons case under Chapter XXI, the
accused is, at the appropriate stage, called upon to enter
upon his defence and produce evidence in his support.
8. It is pertinent to note that the Court takes
cognizance of an offence punishable under Section 138 of
the N.I.Act on a written complaint.
9. Sub-section (2) of Section 227 BNSS stipulates
that the Court shall not issue a summons or a warrant to
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the accused until a list of prosecution witnesses is filed.
Consequently, in a prosecution under Section 138 of the
N.I.Act, the complainant is obliged to furnish the list of
witnesses along with the complaint. In contrast, the
accused is obliged to submit his list of witnesses only
when he is called upon to give evidence in defence, with
reasons for summoning each witness.
10. The statutory framework does not insist on filing
a separate application for summoning a defence witness.
The accused is only required to file a list of witnesses at
the defence evidence stage, and the Magistrate may, in
his discretion, summon such witnesses. Therefore, the
question of filing an application to summon a defence
witness is unnecessary.
11. The right to a fair trial and equal opportunity to
complainant and accused constitutes the cornerstone of
the criminal justice system. It is a fundamental guarantee
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that ensures that justice is not only done, but is also
manifestly seen to be done. This principle safeguards the
rights of the accused while maintaining confidence in the
administration of justice.
12. The doctrine of audi alteram partem entails that
the accused be afforded an effective and meaningful
opportunity to challenge the prosecution's case by cross-
examining witnesses and adducing evidence in defence.
The observance of the above principle assumes particular
significance in a prosecution under Section 138 of the
N.I.Act, where a reverse onus is statutorily imposed on
an accused. It is now well settled that an accused may
discharge the burden by not proving his defence beyond
a reasonable doubt, but by raising a probable defence
that casts a reasonable doubt as to the existence of a
legally enforceable debt or liability, thereby allowing the
prosecution to fail.
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13. In J.Jayalalithaa and others v. State of
Karnataka and others [(2014) 2 SCC 401], the Hon'ble
Supreme Court emphatically reiterated that a fair trial is
the main object of criminal procedure, and that such
fairness should not be hampered or threatened in any
manner. A fair trial entails the interests of the accused,
the victim, and society. Fair trial must be accorded to
every accused in the spirit of the right to life and
personal liberty, and the accused must get a free and fair,
just and reasonable trial on the charge imputed in a
criminal case.
14. Recently, in Muhammed Sahir v. State of
Kerala [2024 (4) KHC 449], this Court held that when an
accused submits a list of witnesses, the Court cannot
arbitrarily pick and choose the witnesses while issuing
summons. However, the court is bestowed with the
power to refuse to summon a witness, but such refusal
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must be for reasons recorded in writing and relate to
delaying tactics, defeating the ends of justice or being
vexatious. Since the defence is entitled to adduce
evidence, it is not proper for the court to restrict the
examination of witnesses in the absence of any sufficient
material. Similarly, the court cannot foresee the nature of
evidence the defence intends to adduce through a
particular witness. The right of the accused to adduce
evidence is a part of a fair trial contemplated under
Article 21 of the Constitution of India.
15. In light of the above discussions, this Court is of
the view that it is for the complainant and accused to
choose their witnesses. The decision to permit a witness
to be examined is within the discretion of the Court,
which must be exercised judiciously, after hearing both
the complainant and the accused on the point. However,
a witness cannot step in and claim immunity from being
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examined as a witness. Nevertheless, considering the
petitioner's contention that he was a director of the
complainant company and falls within the ambit of
"complainant" as per the law laid down in the decisions
relied on by the learned Counsel for the petitioner, and
the learned Magistrate having not considered the law
laid down in the above decisions before issuing summons
to the petitioner, I am of the firm view that the learned
Magistrate is to be directed to reconsider the question
whether the petitioner falls within the ambit of a
complaint to claim immunity from being summoned as
defence witness.
Accordingly, I set aside the orders issuing summons
and warrant to the petitioner, and direct the learned
Magistrate to consider the above question posed in
accordance with the law, and at any rate, within sixty
days from the date of production of a copy of this order,
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after only hearing the complainant and the accused.
Sd/-
C.S.DIAS, JUDGE
SCB/dkr
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PETITIONER ANNEXURES
Annexure A A TRUE COPY OF THE COMPLAINT FILED BY THE
2 ND RESPONDENT AGAINST - 2 - THE 1 ST
RESPONDENT BEFORE THE JFCM COURT-II,
KOTHAMANGALAM NUMBERED AS S.T.2143/2020.
Annexure B A TRUE COPY OF THE DEPOSITION OF THE
POWER OF ATTORNEY HOLDER OF THE 2 ND
RESPONDENT AS PW1 IN S.T.NO.2143/2020 OF
JFCM COURT - II, KOTHAMANGALAM
Annexure C A TRUE COPY OF THE STATEMENT OF THE
ACCUSED UNDER SECTION 313 CR.P.C. IN
S.T.NO.2143/2020 OF JFCM COURT - II,
KOTHAMANGALAM
Annexure D A TRUE COPY OF THE WITNESS LIST DATED
19/08/2025 FILED BY THE ACCUSED IN
S.T.NO.2143/2020 OF THE JFCM COURT-II,
KOTHMANGALAM
Annexure E TRUE COPY OF THE DEPOSITION OF DW1 IN
S.T.NO.2143/2020 OF THE JFCM COURT - II,
KOTHAMANGALAM
Annexure F CERTIFIED COPY OF THE ORDER DATED
23/09/2025 & 15/10/2025 OF THE JFCM COURT
- II, KOTHAMANGALAM IN S.T.NO.2143/2020
Annexure G ORIGINAL SUMMONS ISSUED TO THE PETITIONER
IN S.T.NO.2143/2020 OF THE JFCM COURT-
II, KOTHAMANGALAM
Annexure H A TRUE COPY OF THE INTERIM ORDER DATED
20/12/2024 OF THIS HON'BLE COURT IN
