SRINAGAR: The Jammu Kashmir and Ladakh High Court has dismissed a plea by an accused seeking permission to examine additional defence witnesses in a Rs 10 lakh cheque dishonour case, holding that he could establish his defence through original or certified copies of land sale deeds without producing all the people associated with the transactions.
Justice Sanjay Dhar, while dismissing the petition filed by Bansi Lal Bhardwaj, held that the plea was not maintainable because it effectively amounted to a second revision petition, which is barred under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The court also rejected the petition on the grounds of unexplained delay and lack of merit.
“The said power cannot be used to circumvent a bar contained under any other provision of the Sanhita,” Justice Dhar observed, referring to the High Court’s inherent powers under Section 528 of the BNSS.
The judgment was reserved on October 13 and pronounced on October 22.
Bhardwaj had approached the High Court under Section 528 of the BNSS, challenging orders passed by the 3rd Additional Sessions Judge, Jammu, on November 16, 2024, and the Judicial Magistrate 1st Class (City Judge), Jammu, on September 11, 2023. Both courts had declined to permit him to examine most of the witnesses he had proposed to produce in his defence.
The complaint against Bhardwaj was filed by S. Gagandeep Singh under Section 138 of the Negotiable Instruments Act in connection with a cheque dated September 20, 2009, for Rs 10 lakh, drawn on Jammu Rural Bank, Bohri Patta, Jammu.
According to the judgment, after the complainant concluded his evidence, Bhardwaj’s statement under Section 342 of the Jammu and Kashmir Code of Criminal Procedure was recorded on April 20, 2019. He opted to lead defence evidence, maintaining that he did not owe any money to the complainant.
Explaining his defence, Bhardwaj stated that the complainant was a property dealer and that, at his instance, he had persuaded friends and relatives to sell their land. The complainant allegedly purchased around 30 kanals from them and subsequently sold the land to his clients after executing sale deeds, with Bhardwaj claiming to have witnessed those documents.
He further alleged that his friends and relatives later learnt that the complainant had purchased the land at Rs 1.46 lakh per kanal and resold it at Rs 2.30 lakh per kanal. One of his relatives, Sham Lal, subsequently refused to sell his land.
According to Bhardwaj’s account, the complainant repeatedly visited Sham Lal’s house, following which a settlement was reached under which the complainant would retrieve the land from his clients and repay them at Rs 3 lakh per kanal. Bhardwaj claimed that six cheques were issued by him under the settlement, but the complainant subsequently refused to return the land in accordance with its terms.
To establish this defence, Bhardwaj submitted a list of 19 witnesses and deposited the requisite diet expenses. Most of the proposed witnesses were intended to prove the alleged land transactions.
However, the trial Magistrate, through the order dated September 11, 2023, restricted the defence evidence. The court permitted the examination of two witnesses who had already been examined, allowed Bhardwaj to examine one of witness numbers 18 and 19, and permitted the Record Keeper of the Income Tax Department, listed as witness number 17, to be examined.
The remaining witnesses were disallowed on the ground that the lengthy list had been furnished to prolong the proceedings. The 3rd Additional Sessions Judge upheld that decision on November 16, 2024.
Challenging the restrictions, Bhardwaj argued before the High Court that denying him the opportunity to examine his proposed witnesses would infringe his right to a fair trial and prejudice his defence.
Justice Dhar, however, first examined whether the petition could be entertained at all. The court noted that Bhardwaj had already challenged the trial court’s order before the revisional court and had subsequently approached the High Court under Section 528 of the BNSS after failing to obtain relief.
Referring to Section 438(3) of the BNSS, the court said the provision bars a person who has already approached either the High Court or the Sessions Judge in revision from filing a further revision before either court.
“The petitioner/accused by filing the present petition under section 528 of the BNSS is, in effect, invoking the revisional powers of this Court after having failed in his attempt before the revisional court,” the judgment stated.
The court acknowledged that Section 528 confers inherent powers on the High Court to prevent abuse of the process of any court or otherwise secure the ends of justice. However, it held that these powers could not be invoked to bypass the statutory restriction on a second revision petition.
The petition also failed on the ground of delay. The revisional court had passed its order on November 16, 2024, but Bhardwaj approached the High Court only on October 15, 2025, nearly 11 months later, without offering an explanation for the delay.
Justice Dhar observed that although the BNSS does not prescribe a specific limitation period for petitions under Section 528, such proceedings must be initiated within a reasonable time.
“A revision petition challenging an order can be filed within 90 days from the date of order and on that analogy, a period of 90 days should be treated as a reasonable time to file a petition under section 528 of the BNSS,” the court held.
The judgment added that a petitioner approaching the court beyond 90 days would have to explain the delay. Justice Dhar relied on the High Court’s earlier judgment in Eapen Chakoo versus Union Territory of Jammu and Kashmir, CRM(M) No. 78/2020, decided on July 5, 2022.
In Bhardwaj’s case, the court found that no plausible reason had been furnished for approaching it after nearly 11 months. It consequently declined to entertain the petition on the ground of delay and laches.
The court also examined the matter on merits and found no justification for allowing the remaining witnesses to be summoned.
Justice Dhar observed that the alleged land transactions could be established by placing the original sale deeds or certified true copies of those documents on record. An accused, the court noted, is not required to prove his defence beyond reasonable doubt but only needs to make it probable.
“Therefore, it is not necessary for the petitioner/accused to produce the executants of the sale deeds or their marginal witnesses as witnesses to prove his defense,” the judgment stated.
The court further held that Bhardwaj could establish his defence by producing the relevant documents and that there was no necessity to examine the remaining witnesses on his list.
It concluded that the trial court had been justified in restricting the proposed witnesses to those essential for establishing the defence.
Finding no merit in the petition, Justice Dhar dismissed it.
Bhardwaj was represented by advocate Rohit Sharma, while advocate Himanshu Beotra appeared for Gagandeep Singh.
