BHANWAROO KHAN, J. - (1.) PETITIONER Rajkamal O Sharma is facing trial for the offence under Section 138 of the Negotiable Instruments Act in the Court of Addl. Chief Judicial Magistrate, Ramganj Mandi. The petitioner submitted an application for summoning the witnesses which was rejected by the trial Court vide order dt. 26.11.2008. A revision petition preferred by the petitioner against this order came to be dismissed by the Addl. Sessions Judge, Ramganj Mandi vide order dt. 17.01.2009. Hence, this petition.
(2.) HEARD learned Counsel for the petitioner and perusd the impugned orders as well as the material produced on the record of the file. Learned Counsel for the petitioner has submitted that no opportunity for leading defence evidence was ever granted to the petitioner and the witnesses to be examined in defence are such that he cannot produce them suo moto as they are government officials and his entire defence depends on their statements as from very beginning he has confronted the allegations of the complainant about the cheques which were got written and issued under the pressure of the police personnel. Hence, his defence must be taken on record and opportunity should have been given to the petitioner for producing them through the Court. Learned Counsel for the petitioner then submitted that both the Courts below have acted illegally while rejecting the application for producing the defence witnesses through the Court as well as while dismissing the revision petition filed against the order.
(3.) IT is true that no opportunity has been provided to the petitioner for producing evidence in his defence and after recording his statement his request has been rejected solely on the ground that the witnesses to be summoned would not deposit in favour of the petitioner as any statement in the form of defence as proposed by the petitioner would go against them. Such fact is not to be taken into account by the trial Court at the time of deciding the application. What the Court is required to see is the relevancy of the evidence. What statement ultimately would be given is a factor which should not have been taken into consideration by the Court at the time of deciding such application. In the facts and circumstances of the case, I am of the opinion that in the interest of justice opportunity should have been given to the petitioner for producing his defence.;