Case Note & Summary
The petitioner/accused, Sunil Vassudev Pednekar, was prosecuted by the respondent/complainant, Bicholim Urban Co-operative Bank Ltd., under Section 138 of the Negotiable Instruments Act, 1881, for the dishonour of three cheques amounting to Rs.7,20,000. The accused challenged two orders of the Judicial Magistrate First Class (J.M.F.C.): the first dated 16.01.2001 issuing process against him, and the second dated 16.12.2004 permitting the complainant to examine a witness, Sharad Samant, who was not cited in the complaint. The complaint was not accompanied by a list of witnesses as required under Section 204(2) of the Code of Criminal Procedure, 1973 (CrPC). The accused approached the High Court under Section 482 CrPC after more than four years and four months, having previously unsuccessfully challenged the process order in revision before the Sessions Court. The High Court held that the challenge to the process order was barred by delay and the prior revision, as the accused ought to have raised all grounds then. Regarding the second order, the Magistrate had permitted the witness under Section 311 CrPC, but the complainant conceded that Section 254 CrPC was the appropriate provision. The High Court noted that Section 311 CrPC applies only to witnesses already cited, while Section 254(2) CrPC empowers the Magistrate to summon any witness at the trial stage. The Court modified the order to allow the witness under Section 254 CrPC, subject to the accused's right to cross-examine. The petition was partly allowed, with the challenge to the process order dismissed and the order permitting the witness modified.
Headnote
A) Criminal Procedure - Process Issuance - Section 204(2) CrPC - Requirement of List of Witnesses - Complaint under Section 138 NI Act filed without list of witnesses - Accused challenged process after four years and four months, having unsuccessfully sought revision - Held that delay and prior revision bar challenge under Section 482 CrPC (Paras 2-4).
B) Criminal Procedure - Summoning of Witnesses - Section 254 CrPC vs Section 311 CrPC - Magistrate permitted examination of uncited witness under Section 311 CrPC - Held that Section 311 applies only to witnesses already cited, while Section 254(2) CrPC empowers Magistrate to summon any witness at trial stage - Order modified to allow witness under Section 254 CrPC (Paras 5-7).
Issue of Consideration
Whether the order issuing process under Section 204 CrPC without a list of witnesses is sustainable, and whether the Magistrate could permit examination of an uncited witness under Section 311 CrPC or Section 254 CrPC.
Final Decision
The petition is partly allowed. The challenge to the order dated 16.01.2001 issuing process is dismissed due to delay and prior revision. The order dated 16.12.2004 permitting examination of witness Sharad Samant is modified to be under Section 254 CrPC instead of Section 311 CrPC, with the accused having the right to cross-examine.
Law Points
- Section 204(2) CrPC requires list of witnesses with complaint
- Section 311 CrPC not applicable for summoning prosecution witnesses not cited
- Section 254 CrPC allows Magistrate to summon witnesses at trial stage
- Delay in challenging process under Section 482 CrPC disentitles relief
Case Details
2006 LawText (BOM) (04) 96
CRIMINAL WRIT PETITION NO. 13 OF 2005
Shri Shaikh Vahidulla (for Petitioner), Shri N. N. Sardessai (for Respondent)
Shri Sunil Vassudev Pednekar
The Bicholim Urban Co operative Bank Ltd.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal writ petition under Section 482 CrPC challenging orders of J.M.F.C. in a complaint under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner/accused sought quashing of process order dated 16.01.2001 and order permitting examination of uncited witness dated 16.12.2004.
Filing Reason
The complaint under Section 138 NI Act was filed without a list of witnesses as required under Section 204(2) CrPC, and the Magistrate later permitted examination of a witness not cited in the complaint.
Previous Decisions
The accused had unsuccessfully challenged the process order dated 16.01.2001 in revision before the Sessions Court.
Issues
Whether the order issuing process under Section 204 CrPC without a list of witnesses is sustainable and can be challenged after delay and unsuccessful revision.
Whether the Magistrate could permit examination of an uncited witness under Section 311 CrPC or Section 254 CrPC.
Submissions/Arguments
Petitioner argued that the complaint lacked a list of witnesses as required by Section 204(2) CrPC, and the Magistrate erred in permitting examination of an uncited witness under Section 311 CrPC.
Respondent conceded that Section 311 CrPC was not applicable but submitted that the witness could be examined under Section 254 CrPC.
Ratio Decidendi
A challenge to an order issuing process under Section 204 CrPC cannot be entertained under Section 482 CrPC after a delay of over four years and after an unsuccessful revision, as the accused ought to have raised all grounds in the revision. However, a Magistrate may permit examination of a witness not cited in the complaint under Section 254(2) CrPC, which allows summoning of any witness at the trial stage, rather than under Section 311 CrPC which applies only to witnesses already cited.
Judgment Excerpts
The accused has challenged two Orders of the learned J.M.F.C. in the said case. The first Order dated 16.01.2001, issuing process against the accused and the other dated 16.12.2004, permitting the Complainant to examine a witness, namely, the Bank Manager, a witness who was not cited by the Complainant, earlier.
As far as the first Order dated 16.01.2001 is concerned, I am not inclined to exercise extraordinary jurisdiction under Section 482 of the Code to allow the accused to challenge the same, as the accused has approached this Court belatedly after more than four years, four months and that too after having unsuccessfully challenged the said Order in revision before the Court of Sessions.
The learned J.M.F.C. has permitted the Complainant to examine the said witness under Section 311 of the Code and it is conceded on behalf of the Complainant that leave to examine the said witness could not have been granted under Section 311 of the Code but under Section 254 of the Code.
Procedural History
The complainant filed a complaint under Section 138 NI Act before the J.M.F.C. The J.M.F.C. issued process on 16.01.2001. The accused challenged this order in revision before the Sessions Court, which was unsuccessful. On 16.12.2004, the J.M.F.C. permitted the complainant to examine an uncited witness under Section 311 CrPC. The accused then filed the present criminal writ petition under Section 482 CrPC on 10.08.2005, when rule was issued.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 204, 254, 311, 482
