1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1575 OF 2009 IN CRIMINAL CASE NO.1849/SS/2005 M/s.Omega Petro Products Pvt.Ltd. & anr. Applicant versus State of Maharashtra and others Respondents Mr.Akshay Patil, Mr.Faisal Sayyed with Mayur Bhojwani and Ganpat Monde i/by Manilal Kher Ambalal & Co. for applicant. M.S.Mohite for the respondent no.2. H.J.Dedhia, APP for the State. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 08.05.2009 DATE OF PRONOUNCING THE JUDGEMENT : 08.06.2009 JUDGEMENT : 1. The applicants who have been arraigned as accused in a complaint filed by the second respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the said Act”) have impugned 2 the order dated 11th February 2009 passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai. The applicants made an application for issuing witness summonses to Mr.S.P.Dutta, Mr.M.J.Dhar and Mr.M.K.Sinha. Mr.M.K.Sinha was already examined as a witness by the second respondent- complainant. The said application was opposed by the second respondent by filing a reply. It was submitted that the witness summons to Mr.M.K.Sinha, a prosecution witness cannot be issued as he has been already cross examined by the advocate for the applicants. It was pointed out that the third applicant was already examined as a defence witness for himself and on behalf of other accused. It was submitted in the reply that no reasons have been assigned in the application filed by the applicants for issuing witness summonses to Mr.S.P.Dutta and Mr.M.J.Dhar who are the ex-officials of the complainant company. By the impugned order the learned Judge observed that in the affidavit of the third applicant he has not even stated that the proposed witnesses Mr.S.P.Dutta and Mr.M.J.Dhar were instrumental in obtaining the cheques by force, undue influence and coercion. The learned Judge observed that as the third applicant has not assigned any specific role to the said 3 two witnesses, the witness summonses cannot be issued to them. As far as Mr.M.K.Sinha is concerned, the learned Judge observed that as the said person being a prosecution witness, he cannot be summoned for asking. 2. The learned counsel appearing for the applicants invited my attention to the deposition of applicant no.3 in which he has specifically set out the role played by Mr.S.P.Dutta who was stated to be the then Chief General Manager in-charge of Imports of second respondent and Mr.M.J.Dhar who was the then Manager (Import). The learned counsel for the applicant submitted that in fact the second respondent ought to have examined the said two persons as witnesses but the second respondent failed to do so. He submitted that the applicant no. 3 has stated in the evidence that Mr.Sinha was in-charge of Mumbai office of second respondent. He submitted that there is no bar under the provisions of Code of Criminal Procedure, 1973 (“Code” for short) against issuing witness summons at the instance of the accused to a prosecution witness. He invited my attention to sub section 2 of section 254 of the said Code. 4 3. The learned counsel for the second respondent opposed the application by submitting that after cross examining a prosecution witness at length, the witness summons to the same witness cannot be issued at the instance of the accused. He submitted that the accused were not entitled to examine the defence witnesses as a matter of right. He urged that the ex- officials of the complainant cannot be summoned as defence witness. He submitted that the act of applying for witness summons is nothing but a ploy to prolong the hearing of the complaint and, therefore, no interference is called for. 4. I have carefully considered the submissions. It will be necessary to refer to section 254 of the said Code which reads thus:- “S.254. Procedure when not convicted. (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, 5 issue a summons to any witness directing him to attend or to produce any document or other thing; (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.” 5. Sub-section 2 of section 254 confers power on the Magistrate to issue a summons to any witness directing him to attend or to produce any document on an application of the prosecution or an accused. Sub section 2 provides that the Magistrate may issue summons to any witnesses if he thinks it fit. Therefore, a Magistrate cannot for asking issue a witness summons on an application made by either the prosecution or by the accused. Therefore, the party applying for witness summons has to make out a case for issuance of a witness summons. 6. As far as prayer for issuing witness summons to Mr.S.P.Dutta and Mr.M.J.Dhar is concerned, in the impugned order, the learned Judge has observed that in his deposition the applicant no.3 has has not stated about any specific role played by these two witnesses necessitating their examination 6 as defence witnesses. The said observation appears to be factually wrong. In the examination-in-chief, the third applicant has relied upon the discussion held with Mr.S.P.Dutta and Mr.M.J.Dhar. It is stated that after discussion with the said two officials, the first applicant entered into an agreement with the second respondent. According to the case made out by the third applicant in his deposition, the first applicant was in the business of importing kerosene from the year 1994 to 1998. According to him one Mr.Shaikh recommended that he could get Letter of Credit limit for the first applicant from the second respondent to import furnace oil. On the basis of this recommendation the applicants had discussions with Mr.S.P.Dutta and Mr.M.J.Dhar of the second respondent and the first applicant entered into an agreement with the second respondent on 27th August 1998 to import petroleum products like superior kerosene oil and furnace oil to the tune of Rs. 25.00 crores p.a.. According to the case of the third applicant, as per the agreement, the first applicant was to remit 15% of the CAF value as security deposit. According to the case of the third applicant, the applicants had agreed for the premium of 19 dollars per metric ton and they had never agreed for buying the 7 products from the second respondent at the enhanced rate. A specific allegation is made in paragraph 2 of the deposition of the third applicant that Mr.S.P.Dutta and Mr.M.J.Dhar, Managers of the second respondent had ulterior motive in importing the goods. Thus, in the deposition of the third applicant a specific role has been alleged as against the said two witnesses. Therefore, the observation made by the learned Magistrate to the above extent is totally incorrect. Reliance has been placed by the applicants on the decision of this Court in the case of Chandrakant Ghuse Vs. Vasantrao Zade and others (2008- Cri.L.J.-2122). On plain reading of section 254 of the said Code, an accused has a right to apply for issuing witness summons to a defence witness, provided he makies out a case in that behalf. Considering what is stated by the third applicant in his deposition, the learned Magistrate ought to have issued witness summonses to the said two witnesses. 7. It is true that under section 254 of the said Code there is no prohibition against an accused examining a prosecution witness as a defence witness. However, summons to a prosecution witness at the instance of an accused cannot be 8 issued for asking. Only if a case is made out by the accused for issuing summons by making necessary averments in the application, a Magistrate can issue a summons to the prosecution witnesses at the instance of the accused. In the present case, the prosecution witness Mr.M.K.Sinha has been extensively cross examined by the advocate for the applicants. It is not the case made out in the deposition of the third applicant that the said witness had participated in negotiations with the accused. The third applicant has not made any adverse allegation against the said witness Mr.M.K.Sinha. All that the third accused has stated in his evidence is that Mr.M.K.Sinha was the in-charge of Mumbai office of the 2nd respondent. Considering these factual aspects, the learned Magistrate was right in declining to issue witness summons to Mr.M.K.Sinha. 8. In the circumstances, the application must succeed in part and I pass following order :- A) The impugned order dated 11th February 2009 is quashed and set aside to the extent to which the prayer 9 for issuing witness summonses to Mr.S.P.Dutta and Mr.M.J.Dhar is rejected; B) Insofar as these two witnesses are concerned, the application made by the applicants is allowed and the learned Magistrate will issue witness summonses to these two witnesses; C) The impugned order insofar as it relates to rejection of prayer to issue witness summons to Mr.M.K.Sinha is concerned, stands confirmed; D) The application is partly allowed in the above terms. E) The hearing of the complaint is expedited. (A.S.OKA, J.)