THOMAS THOMASKUTTY Vs. VIJAYAKUMARI

JUDGEMENT

(1.) This petition is filed by the accused in C.C. 805 of 1999 on the file of the Judicial Magistrate of the First Class - I, Pathanamthitta. The above case was taken on file on the basis of a complaint given by the first respondent stating that the petitioner committed the offence punishable under S.138 of the Negotiable Instruments Act (for short the Act). Learned counsel for the petitioner submits that a witness schedule was filed by the petitioner showing the name of the first respondent also as one of the witnesses to be examined. The grievance of the petitioner is that the court refused to issue summons to the complainant, the first respondent for being examined. This petition is filed for giving direction to the Magistrate to permit the petitioner to examine the complainant, the first respondent as a witness.

(2.) The question whether the accused in a case in which the allegation is that he committed the offence punishable under S.138 of the Negotiable Instruments Act has any right to get examined the complainant as a witness came up for consideration before this Court in Kamarudheen v. Shoukkathali ( 2001 (3) KLT 476 ). In the above decision it was held by this Court that it is not just and proper to compel a person to be a witness against him and as a matter of right a party cannot have the opposite party examined as a witness. That was a case in which the allegation against the accused was that he committed the offence punishable under the Act. The Court referred to sub-s. 2 of S.243 Cr.P.C. and observed that though a prosecution witness can be re - summoned under S.243 at the instance of the accused, a complainant cannot be resummoned. In taking a decision as to whether the accused in a case in which the allegation is that he committed the offence under S.138 of the Act can get the complainant examined in court as his witness even though the learned single Judge of this Court referred to S.243 Cr.P.C. the decision appears to be on the basis of the principle that it is not just and proper to compel a person to be a witness against him and that as a matter of right a party cannot have the opposite party examined as a witness.

(3.) Learned counsel for the petitioner would submit that the provision which applies to the present case is S.254(2) Cr.P.C. The above clause says that 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. Whereas in S.243(2) what is said is that 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 what is said in S.254(2) is that the Magistrate may, if he thinks fit, on the application of prosecution or the accused issue summons to any witness. The above fact would indicate that when a summons case is being tried, the Magistrate has the wide discretion to decide whether summons to any witness has to be issued on the application of the prosecution or the accused. On the other hand, under S.243(2) the request for issuing summons to a witness can be refused only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.