Oral Judgment:

1. Rule. Rule made returnable forthwith and with consent of the parties, the petition is heard finally at the stage of admission.

2. By the present petition, the petitioner takes exception to the judgment and order dated 04.01.2020 passed by the learned Sessions Judge, Ahmednagar, in Criminal Revision No. 159 of 2019, thereby dismissed the revision of the petitioner arising out of order dated 31.07.2019 passed by the learned JMFC, below Exh. 58 in SCC No. 1440 of 2016.

3. In short, it is the case of the petitioner/accused that Respondent No.1 Complainant firm has filed SCC No. 1440 of 2016 for the offence punishable under section 138 of the Negotiable Instruments Act alleging dishonour of Cheque bearing No.200014, dated 24.02.2016 for an amount of Rs.11,39,661/- drawn on Bank of Maharashtra, Ravivar Peth, Pune. After service of summons, the petitioner/accused appeared in the matter. In order to prove the accusation, Respondent No.1/complainant firm filed Exh. 19 evidence affidavit of one Shri Sandip Laxman Mapari, the Power of Attorney Holder of the complainant and proved certain documents i.e. Exh.24- Cheque in question, Exh.25- Bank memo, Exh. 26- Statutory notice, Exh.27- acknowledgment and Exh. 28- Copy of power of attorney. The cross examination was conducted on behalf of the petitioner/accused.

4. On perusal of the cross examination of the complainant’s witness Sandip Laxman Mapari, it depicts that the petitioner accused raised following four defence:

                   (1) He was appointed as Distributor and agreement to that effect was executed between him and the complainant firm.

                   (2) He was appointed as Sub-Agent by one Mr. Ashok Ugale.

                   (3) Cheque in question was obtained towards security by the Chairman of the complainant firm under the pretext of providing loan.

                   (4) Account statement maintained during 2012 to 2014 in respect of transaction between complainant firm and Mr. Ashok Ugale.

                   (5) He is not served with statutory notice under section 138 of the Negotiable Instruments Act and a false complaint has been filed against him.

5. After cross examination of PW1 is over, on 04.04.2019, the learned trial court passed an order below Exh.1 and closed the evidence of complainant. On 27.05.2019, the learned trial court recorded statement of the accused under section 313 of the Criminal Procedure Code, wherein the petitioner shown is willingness to examine following witnesses.

                   (1) Sandip Mapari, (2) Managar, Bank of Maharashtra, Ravivar Peth, Pune, (3) Ashok Ugale, (4) Rakesh Shah, Salesman, (5) Machhindra Lanke- Chairman, (6) Kailas Dukre, (7)Vishwanath K. Kature, Distributor (8) K. P. Agarwal Distributor, (9) Vijay Thosar- Distributor

6. On 27.05.2019, the petitioner/accused filed Exh. 58, an application and given list of 13 defence witnesses. On 31.07.2019, the learned trial court passed an order below Exh. 58 and permitted the petitioner to examine (i) Manager of the Bank of Maharashtra, Ravivar Peth Pune and (ii) Shri Ashokrao Ugale- Distributor to prove the transaction between the complainant-firm and Mr. Ashok Ugale. However, the learned trial court declined to issue summons to the other defence witnesses.

7. Being aggrieved by said order, the petitioner/accused approached before the learned Revisional Court by filing Criminal Revision Application No. 159 of 2019. On 04.01.2020, the learned Sessions Judge, Ahmednagar passed the impugned order and dismissed revision of the petitioner, holding that, the petitioner accused has not disclosed in Exh. 58 how the other witnesses are relevant for the defence.

8. The learned counsel appearing for the petitioner canvassed that Section 243 of the Criminal Procedure Code does not contemplate to describe reasons and relevance for examination of the defence witnesses and no specific reason required to be specified for seeking issuance of witness summons to the defence witness. However, both the courts below, without considering scope of Section 243 of the Criminal Procedure Code, rejected prayer for issuance of summons to other defence witnesses because relevance of said defence witnesses has not been described in the application.

9. It is further canvassed that even the relevance of the witness qua the defence is not required to be disclosed in the application for seeking issuance of witness summons. However, both the court below committed jurisdictional error while holding that, the petitioner-accused has not disclosed reasons and relevance in Exh.58 the application seeking issuance of defence witness summons.

10. In support of this submission, the learned counsel for the petitioner-accused placed reliance on the case of T. Nagappa Vs. Y. R. Muralidhar, (2008) 5 Supprme Court Cases 633, wherein, it has been observed that, "it is the accused who knows how to prove his defence. It is true that the court, being the master of the proceedings, must determine whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or whether it is intended to bring relevant material on record. Ordinarily, an accused should be permitted to approach the court for obtaining its assistance with regard to the summoning of witnesses, etc. However, if such permission is granted, the steps therefor must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would be wholly irrelevant.

11. It further relied on the judgment of this Court dated 24.11.2009 in Cri. Application No. 1923 (Smt. Sitabai w/o P Prabhakar Paunikar Vs. Prabhakar Govindrao Paunikar), wherein it is observed that, under sub- section (2) of Section 243 of the Cr.P.C., the legislature has not expressly provided that the words “any witness” excludes the “complainant”. Therefore, the learned counsel appearing for the petitioner submitted that both the courts below committed jurisdictional error and the accused has every right to examine the defence witness in support of his defence.

12. Per contra, learned counsel appearing for respondent no.1 canvassed that, the petitioner-accused has only submitted Exh. 58 an application describing names of the witnesses but failed to specified reasons as to what defence is required to be proved by examination of particular witnesses. Therefore, on 31.07.2019, the learned trial court passed a reasoned order and permitted only to examine two witnesses whose evidence are relevant to prove the defence. It is further canvassed that, the petitioner/accused has not entered into witness box to prove relevance of the other defence witnesses. Therefore, both the courts below have appropriate findings about not disclosing relevance of defence witness to prove the defence, hence, no substantial grounds are set out to interfere with findings of both the courts below. Therefore, prayed for dismissal of the petition.

13. Section 313 of the Criminal Procedure Code provides for examination of the accused in every enquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. It is matter of record that, the petitioner-accused cross examined the complainant's witness and set out defence that, one Mr. Ashok Ugale was appointed as Agent by the complainant firm and said Ashok Ugale was supervising or managing the affairs of the firm in entire Pune district. So also, the petitioner-accused was appointed by the complainant firm being a Distributor and agreement was executed to that effect. Further, said Shri Ashok Ugale appointed him as Sub-Agent and other persons similar to him were also appointed as salesman. Further, the Chairman of the complainant’s firm had obtained the cheque in question towards security for securing loan. The transactions between the complainant firm and Mr. Ashok Ugale from 2012 to 2014 maintained by the Accountant. Therefore, there is no legal liability against him and no statutory notice served upon him, hence, he wanted to examine 13 defence witnesses as per list Exh. 58.

14. Section 243 of the Criminal Procedure Code Provides as under:

                   Section 243: Evidence for defence.—(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

                   (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

                   Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

                   (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.

15. On a bare reading of Section 243 of the Cr.P.C., it appears that, the accused is required to enter upon his defence and, for the purpose of proving such defence, he may apply to the Magistrate for issuance of process to compel the attendance of any witness for examination or cross-examination. Upon being satisfied, the Magistrate is required to issue such process; however, the Magistrate may refuse to issue witness summons if the application is made for the purpose of vexation, delay, or for defeating the ends of justice.

16. In the case in hand, the petitioner accused already set out the defence that, he was appointed as Sub Agent by Mr. Ashok Ugale. Shri Machhindra Lanke, the Chairman of the complainant’s firm obtained the cheque in question towards security to obtained loan. Further, he wanted to prove statement of transactions between the complainant firm and Ashok Ugale for the period from year 2012 to 2014. The petitioner/accused submitted Exh. 58 and described names of 13 defence witnesses including name of Sr. No.1- Sandip Laxman Mapari, who has been examined by the complainant and the petitioner/accused already cross examined said witness. Therefore, said witness can’t be permitted to examined as defence witness. Further, the petitioner/accused has not assigned any reasons as to why he wanted to examine witness at Sr. No.3 Shri Patil, Phadgate Police Chowki, Pune and his evidence does not appear to be relevant because the petitioner wanted to prove loss/missing of his mobile phone. Further, witnesses at Sr. Nos. 5, 6, 10, 11 and 12 are appears to be the Distributors of the complainant’s firm like the petitioner. Therefore, their evidence does not appear relevant to prove defence of the accused and as such no defence has been set out by the petitioner in the cross examination of the complainant’s witness.

17. Further, the petitioner wanted to examine Shri Macchindra Shantaram Lanke, Director of the complainant firm to prove fact about obtaining cheque in question towards security to obtain loan. The Petitioner wanted to examine the defence witness at Sr. No.8 Shri Kailas Eknath Dukre, the Accountant to prove statement of account between the complainant firm and Shri Ashok Ugale for the period 2012 to 2014 as it is put in cross-examination of the complainant’s witnesses. Since, the petitioner has set out such defence, to my mind, it would be just and proper to permit the petitioner accused to cross examine (i) Shri Machhindra Shantaram Lanke, Director of the complainant’s Firm and (ii) Shri Kailas Eknath Dukre, Account Head to prove his defence.

18. Though the petitioner accused denied about service of statutory notice under section 138 of NI Act, however, the Respondent- complainant’s witness proved Postal acknowledgment Exh. 27 to prove service of statutory notice upon the petitioner. Therefore, the presumption can be drawn and there is no necessity to examine Postmaster of Ganesh Peth City Post, Pune i.e. witness no.13.

19. The learned trial court has passed an order dated 31.07.2019 and permitted the petitioner accused to examine only two witnesses i.e. Witness No.2- Manager of Bank of Maharashtra, Ravivar Peth, Pune and and witness No.4 Ashok Ugale but declined to issue defence witness summons to witnesses at Sr. Nos. 1, 3, 5 to 13. On 04.01.2020, the learned Revisional Court passed the impugned order and dismissed revision of the petitioner holding that, the petitioner/accused failed to disclose as to how other witnesses are relevant to the defence. However, taking into consideration the defence of the petitioner, it would be just and proper to permit the petitioner/accused to examine (i) Shri Machhindra Shantaram Lanke, Director of the complainant’s Firm and (ii) Shri Kailas Eknath Dukre, Account Head to prove his defence, in addition to above two witnesses to whom the learned trial court inclined to issue witness summons. In view of above discussion, I proceed to pass the following order:

ORDER

(i) Writ petition is partly allowed.

(ii) The judgment and order dated 04.01.2020 passed by the learned Sessions Judge, Ahmednagar in Criminal Revision No. 159 of 2019 is hereby quashed and set aside.

(iii) The order dated 13.03.2019 passed by the learned JMFC, below Exh. 58 in SCC No. 1440 of 2016 is hereby partly quashed and set aside. The petitioner is permitted to examine the following defence witnesses:

                   (1) The Branch Manager, Bank of Maharashtra, Ravivar Peth, Pune.

                   (2) Shri Ashok Ugale, Distributor.

                   (3) Shri Machhindra Shantaram Lanke, Director of the complainant firm.

                   (4) Shri Kailas Eknath Dukre, Account Head of the firm.

                   (iv) The learned trial court is hereby directed to issue defence witness summons and to permit the petitioner to examine said witnesses.

                   (v) The learned trial court is hereby requested to conclude the trial as early as possible, preferably within a period of four months.

                   (vi) Earlier interim order passed by this Court stands vacated.

                   (vii) No order as to costs.