H.R.PANWAR, J. - (1.) BY the instant criminal misc. petition under Section 482 Cr. P.C., order dated 21.5.2008 passed by Judicial Magistrate, Ist Class, No. 2 (South), Udaipur (for short 'the trial court' hereinafter) in Criminal Case No. 34/05 has been challenged by the accused petitioner.
(2.) I have heard learned counsel for the parties. It appears that on complaint filed by respondent No. 2 under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act' hereinafter), the trial court took the cognizance and the trial proceeded. The complainant made his statement, S.B. Criminal Misc. Petition No. 766/08 produced the documents and got the documents exhibited. Thereafter, the accused-petitioner made his statement under Section 313 Cr P.C. and expressed desire to lead evidence in defence, however, moved an application summoning the witnesses mentioned in the application as defence witness, which came to be dismissed by order impugned. However, the petitioner was permitted to produce the defence witnesses on his own. The petitioner is aggrieved by the order impugned to the extent non-summoning the defence witnesses. Earlier also, on similar facts, the petitioner filed criminal misc. petition being S.B.Cr. Misc. Petition No. 585/07 "Ishwar Lal v. State of Rajasthan and Anr. which came to be disposed of by a Coordinate Bench of this Court vide order dated 2.5.2007 setting aside the similar order to the extent allowing the petitioner to produce the defence witnesses in his own accord and the trial court was directed to issue summons to those witnesses, who were named by the petitioner as defence witnesses in his application. Though the matter is old enough but in the interest of justice, it is equally necessary to allow the petitioner to lead the evidence in defence so that the defence can be put forth before the trial court. Since the witnesses are public servants and unless the summon is issued summoning them to appear as S.B. Criminal Misc. Petition No. 766/08 a witness, they would not appear at the request of the petitioner and, therefore, the order impugned deserves to be set aside to the extent declining to summon the defence witnesses.
(3.) HAVING regard to the peculiar facts and circumstances of the case and the fact that in a similar case, such direction has been given by this Court, I consider it just and proper to allow the petition.;