Excelsior Correspondent
Srinagar, Dec 27: High Court has held that the statement of complainant in cheque bounce case is absolutely necessary for proper decision of the case and quashed the orders of trial court whereby statement as witness in the case was closed and directed the trial magistrate to record the statement of complainant for arriving at just decision in the matter.
The orders of the Chief Judicial Magistrate Sopore came to be challenged before the High Court whereby to record the statement of complainant in cheque bounce case was closed and Justice Sanjay Dhar while setting aside the orders of the court below recorded that if the trial court has proceeded to record the evidence of the accused and in that event the court shall proceed to record statement of the complainant also.
“The court below shall afford an opportunity to the accused to cross examine him with a further opportunity to produce any other evidence in defence. This order shall take effect only if the proceedings before the trial court are still pending”, Justice Dhar said.
Court on passing orders by trial court closing the right to make statement in the case by the complainant said, it becomes clear that it is a case of bona fide error on the part of trial Magistrate which has led to the closure of complainant’s evidence. “If the impugned orders are allowed to stand, then it will result in failure of justice, inasmuch as a vital piece of evidence in the shape of statement of the complainant would not be available before the trial court though the same is absolutely necessary for arriving at a just decision”, Justice Dhar further recorded.
Underscoring the importance of statement of complainant in cheque bounce case court has recorded that in such cases, even the Magistrate, on his own motion or on the motion of the complainant, could have exercised powers under Section 540 of J&K Cr. P. C and called the complainant for recording his statement so as to arrive at a just decision of the case.
“This Court is of the view that shutting out the evidence complainant without recording statement of the complainant would result in failure of justice and, as such, this is a fit case where this Court should exercise its jurisdiction under Section 561-A of J&K Code of Criminal Procedure for securing the ends of justice”, reads the judgment
Complainant Ashaq Zia Dar had filed two complainant against the accused Gh Mohi-ud-din Mir for issuing two cheques which have bounced due to non-availability of amount before the trial magistrate and two identical but separate orders came to be passed in both the complaints whereby evidence of the complaint was directed to be closed.
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