1 28 S.B. CIVIL WRIT PETITION NO.7175/2006. Arvind Kumar Chokhra Vs. State & Ors. Date of Order :: 18th February 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Ravindra Singh, for the petitioner. ..... Reportable BY THE COURT: The petitioner, a legal practitioner at Makrana and having been appointed as Notary at registration No.1738, seeks to question by way of this writ petition the summons (Annex.8) issued to him by the Additional Chief Judicial Magistrate, Makrana to appear as a witness in Criminal Case No. 38/2005. The petitioner has averred that on 25.04.2005, he notarised an agreement between two persons: one Mohammed Iqbal son of Nawab Ali and another Manish Jhanwar son of Hukmi Chand Jhanwar and made an entry in that behalf at serial numbers 353/6 and 354/6 in the register statutorily required to be maintained by him; that some dispute arose between the parties to the said agreement and the said Manish Kumar filed a criminal complaint alleging offences under Sections 420, 406 and 120-B of the Indian Penal Code (IPC); and that the complaint was considered by the Additional 2 Chief Judicial Magistrate, Makrana and directions were given under Section 156(3) of the Code of Criminal Procedure (CrPC) to the concerned Police Station to investigate whereupon an FIR was registered bearing number 219/2004. The petitioner has pointed out that during the course of investigation, the Investigating Officer issued him notice (Annex.4) and then, recorded his statement (Annex.5) under Section 161 CrPC; and after completion of the investigation, a charge-sheet (Annex.6) was filed on 21.12.2004. The petitioner has further pointed out that by the order dated 20.04.2006 the learned Trial Court proceeded to frame the charges under Sections 406 and 420 IPC against the accused Mohammed Iqbal and while doing so, observed that existence of the said agreement was not in dispute. The petitioner submits that the complainant never cited him as a witness in the list submitted before the Trial Court and then, the Trial Court also found that there was no dispute in relation to the agreement and contends that there was no occasion to call him as a witness. The petitioner states that he has been singled out for harsh treatment by being summoned as a witness. While relying on the decision of the Hon'ble Punjab and Haryana High Court in the case of Banarsi Dass Vs. Maman Chand : AIR 1992 Punjab and Haryana 145, it is 3 submitted that a Notary is to perform very many functions including verification, authentication, and attestation of the documents and, as his attestation is to be taken as conclusive evidence, the Notary who had recorded the certificate of attestation is not required to be called as a witness. Section 58 of the Evidence Act has also been referred to submit that the admitted facts are not required to be proved. The petitioner has essentially prayed for the reliefs that the notice (Annex.4) and summons (Annex.8) may be quashed and that his name may be deleted from the list of witnesses in the said Criminal Case No. 38/2005. Having heard the learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any reason or justification that any writ, order or direction be issued at the instance of the petitioner in this matter. From the material placed on record, it is apparent that upon filing of the complaint in question, the matter was referred for investigation under Section 156 (3) CrPC; and during the course of investigation, the petitioner was examined by the Investigating Officer and his statement (Annex.5) was indeed recorded under Section 161 CrPC. It appears that the dispute is essentially between the 4 parties to the agreement or the persons claiming through or under them regarding payment of the amount of consideration; and charge-sheet has been filed for the offences under Sections 420 and 406 IPC; and charges have been framed against the accused by the order dated 20.04.2006 after noticing the allegation that the accused mala fide took an amount of Rs. 2,00,000/- from the complainant without having the authority to excavate the mineral from the mining area in question and then, neither returned the amount nor handed over the material. The Trial Court has prima facie found the ingredients of intention of cheating and breach of trust being available so as to frame the charges under Sections 420 and 406 IPC. In the criminal case, when the Trial court has considered it proper to summon for evidence the petitioner who was, admittedly, examined as a witness under Section 161 CrPC and who has been cited as one of the witnesses for the prosecution, this Court is unable to find any illegality or irregularity on the part of the learned Trial court in such summoning of the petitioner nor could it be said that requiring the petitioner to appear as a witness would be causing him any prejudice. Whether the petitioner was cited as a witness by the 5 complainant or not is hardly of any relevance or bearing particularly when it is noticed that the petitioner was indeed examined by the Investigating Officer under Section 161 CrPC and has been cited as a witness in the charge sheet filed before the Court. Similarly, the observation as made by the learned Trial Court while framing the charges that existence of the agreement was not a matter of dispute cannot be taken decisive on the question as to whether the Trial Court would require the petitioner’s evidence in the case before it. It is ultimately for the Trial Court to consider as to what evidence is required by it for arriving at a just decision and for that matter, the power of the Trial Court to summon any relevant person as a witness remains unquestionable. The submissions as made by the petitioner hardly carry any substance; and rather this Court is unable to appreciate if the petitioner could be considered having any legitimate grievance on being summoned as a witness. Reference to the provisions of Section 58 of the Evidence Act remains entirely misplaced. Even when the facts admitted are not required to be proved, the proviso to Section 58 makes it clear that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. In the given case, when the Trial Court considers 6 that a particular person's testimony is requisite for it to arrive at a just decision, in the opinion of this Court, the person summoned owes a duty to assist the Court and cannot avoid to do so. The decision of the Hon'ble Punjab and Haryana High Court in the case of Banarsi Dass (supra), to say the very least, has hardly any bearing on the issue sought to be raised by the petitioner. In the given civil suit, the learned Trial Court observed that a particular fact about attestation of certificate was not required to be proved by producing the Notary as a witness and the attestation was taken as conclusive evidence. The said decision does not lay down the law that a Court may not summon a Notary as a witness. There appears no reason or justification to issue any writ, order, or direction at the instance of the petitioner. The writ petition fails and is, therefore, dismissed. The interim order dated 11.12.2006 stands vacated. A copy of this order be sent to the concerned Trial Court. (DINESH MAHESHWARI), J. Mohan/