BASANT KUMAR Vs. BURJ MUHAR PETRO CENTRE

JUDGEMENT

(1.) The present revision petition has been filed to challenge the order dated 03.06.2014 passed by the Sub Divisional Judicial Magistrate, Abohar, whereby, the application moved by the petitioner for re-summoning a defence witness, who was discharged by the Court below, has been dismissed and also for summoning two additional witnesses. The petitioner is an accused for offence under Section 138 of the Negotiable Instruments Act. The case was fixed for defence evidence and the petitioner-accused was asked to lead his evidence. The petitioner moved an application for summoning witnesses. One of the witnesses was the officer of Bharat Petroleum Corporation Limited, Phusa Mandi, Bathinda, who was material for establishing the innocence of the petitioner/accused.

(2.) As per case of the petitioner, due to inadvertence/negligence of the counsel, the official record which was to be summoned along with said witness was wrongly mentioned as being the record of the complaint filed by the complainant firm. It was brought to the notice of the Court and even at the time of issuing summons, the trial Court mentioned that the concerned officer be summoned along with record of the respondent firm. The said witness appeared with the relevant record of the respondent firm from the period 01.01.2009 to 31.12.2010 and the trial Court discharged the said witness. When this fact came to the notice of the petitioner, he changed the counsel. It also came to the notice of the petitioner that two material witnesses were not summoned by the earlier counsel and thereafter, the application for summoning additional witnesses and re-summoning the discharged witness was moved. The application moved by the petitioner was dismissed on the ground that he has availed fourteen effective opportunities and earlier also an application for summoning the eleven witnesses was filed and hence there seems no justification for allowing application for summoning those witnesses.

(3.) Learned counsel for the petitioner submits that due to negligence/inadvertence of counsel for the petitioner, the official record was wrongly mentioned to be the record of the complaint but it came to the notice of the petitioner subsequently. Only on the basis of statement of counsel that the record of the relevant time was with the said witness, he was discharged by the Court. It has also been argued by learned counsel for the petitioner that the entire record of the case is relevant and for that purpose, re-summoning of discharged witness is necessary. Learned counsel also submits that there was no fault of the petitioner but due to the fault of the counsel, he should not suffer. Nothing has been mentioned in the impugned order as to whether the witnesses and documents, as mentioned in the application, are necessary to establish the innocence of the petitioner or for the purpose to reach at the conclusion as to whether the petitioner is guilty of offence under Section 138 of the Negotiable Instruments Act or not. Learned counsel also submits that the summoning of said witnesses along with relevant record is necessary for just decision of the case and the petitioner undertakes to complete his evidence within the shortest period by summoning those witnesses as per responsibility of the petitioner.