Summoning witnesses sparingly: complainant-side witnesses cannot be converted into defence witnesses without legal necessity

Witnesses already examined for the complainant cannot ordinarily be treated as defence witnesses by invoking the power to summon witnesses; that power must be exercised sparingly and only when necessary to advance justice, so the order allowing such examination was quashed. In a complaint under Section 138 of the Negotiable Instruments Act, the accused's property details were held to be irrelevant to liability, and the trial court's direction to summon the Patwari was set aside because the evidence was not shown to be essential for a just decision. The impugned order was interfered with to that extent only.

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Issues: (i) whether witnesses already examined by the complainant could be summoned and examined on behalf of the accused by invoking the power to summon witnesses; (ii) whether the summoning of Patwari Halqa Wathora was justified in a complaint under Section 138 of the Negotiable Instruments Act, 1881.

Issue (i): whether witnesses already examined by the complainant could be summoned and examined on behalf of the accused by invoking the power to summon witnesses.

Analysis: The power to summon or recall witnesses is to be exercised only to advance the ends of justice and with great caution. The Court held that where witnesses of one side have already been examined and cross-examined, they cannot ordinarily be treated as witnesses for the opposite side. If further clarification was required, the proper course would have been to seek their further examination as complainant's witnesses, not to convert them into defence witnesses. The impugned order was found to have proceeded on a misdirection in invoking the power to summon witnesses.

Conclusion: The order permitting Nazir Ahmad Joo and Manager J&K Bank Branch Chadoora to be examined as defence witnesses was unsustainable and was quashed.

Issue (ii): whether the summoning of Patwari Halqa Wathora was justified in a complaint under Section 138 of the Negotiable Instruments Act, 1881.

Analysis: The Court held that the accused's property details were not relevant to the determination of liability in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The trial court had not applied its mind to the necessity of such evidence, and the witness was not shown to be essential for a just decision of the case.

Conclusion: The direction to issue process to Patwari Halqa Wathora was also unsustainable and was quashed.

Final Conclusion: The impugned order was interfered with to the extent it allowed examination of the complainant-side witnesses as defence witnesses and directed summoning of the Patwari, while the petition was otherwise disposed of.

Ratio Decidendi: Witnesses already examined for one party cannot, without legal necessity, be treated as witnesses for the opposite party by invoking the power to summon witnesses; that power must be exercised sparingly and only when essential for a just decision.

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