Sr. No. 98
Suppl. List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) 279/2024 CrlM(694/2024)
ROUF AHMAD BABA
…Petitioner(s)/appellant(s)
Through: Mr. Mir Javid, Advocate
Vs.
MANZOOR AHMAD RAH ...Respondent(s)
Through:
CORAM:
HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
O R D E R
31.05.2024
Oral:
1. Through the medium of the instant petition, the petitioner has
invoked the inherit power of this Court enshrined under Section 482
th th
Cr.P.C seeking quashment of orders dated 29 August, 2023 & 28
November, 2023 passed by the Court of JMIC/Sub Registrar,
Srinagar in complaint titled as Manzoor Ahmad Rah Vs. Rouf
“
Ahmad Baba”.
2. The facts emerging from the record would reveal that the respondent
herein filed a complaint under Section 138 of the Negotiable
Instruments Act 1881, against the accused petitioner herein
pertaining to two cheques being 965769 and 965770 dated
10.12.2019 and 11.12.2019 respectively amounting to Rs. 4 lacs
each which cheques for encashment purportedly had been issued by
the accused petitioner to the complainant respondent herein and after
presentation of the said cheques had got bounced, the complaint in
question had been filed by the complainant/respondent herein and
Arif Hameed
I attest to the accuracy and
authenticity of this document
21.06.24
after entertaining the said complaint, the Magistrate had taken
cognizance thereof and summoned the accused petitioner in terms
th
of order dated 27 January, 2020 and thereafter recorded the
statement of the accused petitioner under Section 242 Cr.P.C, and
on the basis of the said statement, wherein the accused petitioner had
admitted the issuance of cheques to the complainant/respondent
herein in discharge of a debit, but had pleaded that the amount
covered by the cheques had been earlier paid to the
complainant/respondent herein and although the Magistrate had
initially directed the complainant/respondent herein to lead evidence
in the matter, the accused petitioner herein thereafter instead came to
be directed by the Magistrate to lead evidence in terms of order dated
th
16 April, 2022, whereupon the accused petitioner produced two
witnesses which were cross examined as well by the counsel for the
complainant/respondent herein and consequently in terms of order
th
dated 29 August, 2023, the right of the accused petitioner to lead
evidence came to be closed at the instance of the counsel for the
accused petitioner, whereafter the complainant/respondent herein
came to be directed by the Magistrate to lead evidence which,
however, came to be opposed by the counsel for the accused
petitioner herein on the ground that after leading his evidence as a
accused in the complaint, the complainant/respondent herein cannot
be permitted to lead his evidence and after taking into consideration
the said objection of the counsel for the accused petitioner herein, the
Magistrate allowed the complainant/respondent herein to lead
th th
evidence in terms of orders dated 29 August, 2023 and 28
November, 2023.
Arif Hameed
I attest to the accuracy and
authenticity of this document
21.06.24
3. The accused petitioner herein has questioned impugned orders
primarily on the ground that the Magistrate could not have permitted
complainant respondent herein to led evidence after the accused
petitioner herein had evidence in the first instance instead of the
complainant respondent herein.
Heard learned counsel for the petitioner and perused the record.
4. Perusal of the record reveals that the Magistrate in terms of order
th
dated 16 April, 2022 directed the accused petitioner herein was
directed by the Magistrate to lead evidence and the accused
petitioner without objecting to the same or joining an issue thereof
including that it is the complainant/respondent herein who has to
lead evidence in the first instance before leading his evidence,
consented to the leading of his evidence in the first instance and
thereafter even consented to the closure of his evidence. In presence
of the said admitted position, the accused/petitioner herein cannot
now dispute that the Magistrate ought to have directed the
complainant respondent herein to lead evidence in the first instance
and that the Magistrate cannot permit the complainant/respondent
herein to lead evidence now after the accused petitioner had led his
evidence, in that, on any ground including that the defense available
to the accused petitioner have had got exposed and same is likely to
be exploited by the complainant/respondent herein while leading his
evidence
The contention raised by the accused petitioner is legally
untenable and misconceived in view of the fact that the accused
petitioner have had disclosed his defense earlier before leading of
evidence while getting his statement recorded under Section 242
Arif Hameed
I attest to the accuracy and
authenticity of this document
21.06.24
Cr.P.C. Even otherwise as well, the leading of the evidence by the
complainant/respondent herein now would not cause any kind of
serious prejudice to the rights and interest of the accused petitioner
herein, in that, the accused petitioner would have a chance to cross
examine the witness those may be produced by the
complainant/respondent herein and contradict the said evidence.
It is cardinal principle of law of evidence that the best
evidence must be brought before the Court by the parties in order to
enable the court to decide the issues involved in a case effectually
and conclusively.
Thus, this Court is of the opinion that the
complainant/respondent herein cannot be divested of his right to lead
evidence in the matter and that the Magistrate cannot be aid to have
faulted in this regard.
5. Viewed thus, this Court is not inclined to interfere with the
impugned orders. Resultantly, the petition fails and is accordingly
dismissed.
(Javed Iqbal Wani)
Judge
SRINAGAR
31.05.2024
Arif
Arif Hameed
I attest to the accuracy and
authenticity of this document
21.06.24