B M ARIF Vs. BOSTON TEA INDIA LTD

JUDGEMENT

(1.) THE petitioner herein is the accused and the respondent, the complainant in C. C. No. 1853/2000 on the file of the jmfc (IV Court), Mangalore, registered for an offence punishable under Section 138 of negotiable Instruments Act. In that case, after the complainant's evidence was Over, and during the course of his examination under Section 313 of Cr. P. C. , the petitioner contended that the complainant company had taken from him deposit of Rs. 5p,000/-and a, blank cheque as security and that angered by his act of not supporting the complainant company with regard to the action of Health officer against complainant-company for alleged adulteration of articles, the blank cheque has been filled up by the company and has been misused. He also expressed a desire to lead evidence in his defence. Thereafter, he filed an application on 21-11-2003 requesting the Court to issue summons to his witness G. M. Mustaffa. The ground for examination of that witness as urged by the accused-petitioner is that all along it had been his contention that blank cheque signed by him was obt ained by the complainant-company as security for future supply of goods and that the said witness was present when the said blank cheque was handed over.

(2.) THE complainant-respondent objected to the prayer of the accused- petitioner on the ground that only after accused-petitioner was examined as a witness that he gets a right to seek issuance of summons for examination of a witness and that, therefore, when the accused had not offered to examine himself as a witness, he has no right to ask the Court to issue summons to his witness.

(3.) AFTER hearing the complainant and the accused the learned JMFC (IV Court), mangalore, passed an order on 27-11-2003 holding that the question of issuing sum mons to a defence witness under Section 254 (2) of Cr. P. C. arises only after the examination of the accused. In that view of the matter, he ordered that the application of the accused be kept in abeyance until the evidence of the accused. That order has been challenged by the accused in this petition filed under Section 482 of Cr. P. C. on the ground that the accused cannot be compelled to examine himself as a witness and that there is no bar in the Code of Criminal procedure on examining a defence witness, before the accused offers to examine himself as a witness.