SRINAGAR: The Jammu and Kashmir and Ladakh High Court has set aside orders closing a complainant’s evidence in a 2020 cheque-bounce case and refusing to reopen it, holding that the trial court should have allowed him to examine two material witnesses—a Bank Manager and a Postman—to ensure a fair and just decision.
Justice Mohd Yousuf Wani passed the judgment in CRM(M) No. 53/2025 on August 14, 2026, allowing a petition filed by Abdul Hamid Bhat of Kawhar Bulbulabad, Baramulla, against Abdul Rashid Bhat. The High Court directed the trial Magistrate to permit Bhat to produce and examine the two witnesses and, if sought, provide court assistance in securing their attendance.
The court was hearing a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), challenging orders dated July 26, 2023 and December 16, 2024 passed by the Judicial Magistrate (Sub-Judge/Special Mobile Magistrate), Baramulla.
Bhat had filed a complaint under Section 138 of the Negotiable Instruments Act on February 14, 2020. His evidence was subsequently closed by the trial court on July 26, 2023, while his application seeking recall or reconsideration of that order was dismissed on December 16, 2024.
According to Bhat, the proceedings were affected by the COVID-19 pandemic, which disrupted the normal functioning of courts and other institutions.
He told the High Court that his original counsel, Advocate Saqib Rasool, was subsequently appointed as a Prosecuting Officer. The case was thereafter handled by a junior advocate, Ms Farhat, who, according to Bhat, did not properly update him about the proceedings.
Bhat further claimed that the junior counsel did not deal with the case properly and subsequently returned the brief to him after her marriage. He said he was not informed that his evidence had been closed and learnt about the order only later.
The petitioner also stated that he was not present in court on July 26, 2023, when his evidence was closed, although his counsel was present.
He told the court that he was only a matriculate and did not possess sufficient knowledge of proceedings under the Negotiable Instruments Act.
After learning of the closure of his evidence, Bhat approached the trial court seeking recall of the July 26, 2023 order so that two witnesses—the concerned Bank Manager and Postman—could be examined. He maintained that both were material witnesses and that their evidence was necessary for proving his complaint.
The trial court rejected his request on December 16, 2024.
Justice Wani noted that on July 26, 2023, when the complainant’s evidence was closed, the complainant himself was absent but his counsel was present. Significantly, the court also noted that no witness was present on that date.
The judgment records that there had also been representation on behalf of the complainant during consecutive hearings preceding the closure of evidence.
The High Court held that before closing the evidence, the Magistrate ought to have issued an “alarming order” directing the complainant to produce his entire evidence and making clear that failure to do so would result in closure of the evidence.
The court observed that such an approach would have warned the complainant of the consequences of failing to produce his evidence while also facilitating an expeditious trial.
“It is true that the complainant’s evidence was awaited since a long period with intervening COVID-19 pandemic,” Justice Wani observed.
The court also took note of the petitioner’s explanation that the pandemic had intervened during the proceedings and that his counsel’s appointment as a Prosecuting Officer had resulted in the case being handled by a junior advocate.
Trial court’s refusal to recall order questioned
The trial Magistrate had rejected the subsequent application, among other reasons, on the ground that a Magistrate could not recall his own order.
Justice Wani held that the Magistrate’s view that there was no power to recall the July 26, 2023 order was not justified.
The judgment states that Section 362 of the Code of Criminal Procedure, corresponding to Section 403 of the BNSS, authorises a criminal court to alter or review orders which are not final and which dispose of the case.
“The Ld. Magistrate could have exercised his powers under Section 362 of the Code to recall the order dated 26-7-2023, as there were justified grounds warranting the same,” the High Court held.
The court further pointed to Section 311 of the CrPC, corresponding to Section 348 of the BNSS, which empowers a criminal court, at any stage of an inquiry, trial or other proceeding, to summon a person as a witness or examine a person in attendance, as well as recall and re-examine a witness already examined, where the evidence appears essential to a just decision.
An important aspect of the judgment concerned the interaction between proceedings under Section 138 of the Negotiable Instruments Act and the general criminal procedure law.
The High Court held that Sections 362 and 311 of the CrPC cannot be treated as inapplicable to proceedings arising from a Section 138 complaint.
Justice Wani noted that several provisions in Chapter XVII of the Negotiable Instruments Act—including Sections 142, 142(a), 143, 143(a), 144, 145, 147 and 148—begin with a non-obstante clause, meaning that they operate notwithstanding anything contrary in the CrPC.
However, the court said this does not mean that the general procedural provisions of the criminal procedure law become completely inapplicable to matters arising in a cheque-bounce complaint.
“It at the same time also means and conveys that the provisions of the Code are not inapplicable in respect of other matters of procedure arising out of a complaint under Section 138 of the NI Act,” the judgment states.
The court also referred to Section 145(2) of the Negotiable Instruments Act, under which the court may, and on an application by the prosecution or accused shall, summon and examine a person giving evidence on affidavit regarding the facts contained in it.
The petitioner’s counsel relied upon a 2024 judgment of a coordinate bench of the High Court in Farooq Ahmad Wani vs Tariq Ahmad Khan, decided on May 6, 2024 in CRM(M) No. 400/2024 and reported as 2024 (2) SLJ HC 837.
That judgment had held that the power under Section 311 CrPC is intended to enable a court to determine the truth and render a just decision.
The High Court also referred to the Supreme Court’s judgment in Manju Devi versus State of Rajasthan and Anr, reported as 2019 SCC 203, which held that the age of a case by itself cannot be decisive when a party seeks examination of material witnesses.
The respondent, Abdul Rashid Bhat, opposed the petition through Senior Advocate N.H. Shah, assisted by Advocate Ms Suwaiba.
The respondent argued that the complainant had been given innumerable opportunities over more than three years to produce his evidence but failed to do so.
The defence maintained that the complainant had never approached the trial court for assistance in securing the attendance of the Bank Manager and Postman whom he now sought to examine.
The respondent also argued that the trial Magistrate had given reasons for both impugned orders and had correctly held that a Magistrate could not recall his own order.
The Senior Counsel further submitted that the respondent was being unnecessarily subjected to trial in what he described as a false and frivolous complaint, and that the proceedings had become oppressive for him.
The High Court ultimately found that reopening the evidence would meet the ends of justice.
Justice Wani observed that the two witnesses sought by the complainant were material witnesses and that allowing their examination would facilitate a fair adjudication of the complaint.
“The highest thing that could have happened if the Ld. Magistrate would have allowed the application of the complainant-petitioner, for recalling of the earlier closure order, is that the petitioner-complainant would have been in a position to get his two material witnesses examined in the proceedings of the complaint,” the court said.
The court added that this would have facilitated “a fair, transparent, and just decision of the case.”
In a notable observation, Justice Wani said: “Courts are respected not for legalizing injustice, but for removing the same.”
The court also criticised the manner in which the impugned orders had been passed, observing that orders passed in a “casual, hot haste, and cavalier manner” could actually result in further delay in proceedings.
The High Court accordingly allowed Bhat’s petition and set aside both the July 26, 2023 order closing his evidence and the December 16, 2024 order rejecting his application for recall.
The trial Magistrate has been directed to allow Bhat to produce and examine the concerned Bank Manager and Postman.
The High Court further directed that if Bhat seeks assistance from the trial Magistrate to secure the attendance of the two witnesses, such assistance shall be provided.
The judgment was pronounced and uploaded on August 14, 2026.
Abdul Hamid Bhat was represented by Advocate Bashir Ahmad Zargar, while Abdul Rashid Bhat was represented by Senior Advocate N.H. Shah with Advocate Ms Suwaiba.
The matter was decided by Justice Mohd Yousuf Wani. The order bears the date August 14, 2026, and was signed by Justice Wani at Srinagar.
