J&K HC Upholds Cheque Accused’s Witness Limit, Saying Sale Deeds Can Prove His Defence And 90 Days Is Reasonable For Section 528 Petitions

The respondent filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act concerning a cheque for ₹10,00,000.

The petitioner’s defence was that the cheque formed part of a settlement relating to land transactions involving the respondent and the petitioner’s friends and relatives, and that he did not owe the respondent money.

To establish that defence, the petitioner sought to summon 19 witnesses.

The trial Magistrate allowed only a limited number of witnesses, finding that the remainder were unnecessary and that the application would protract the proceedings; the revisional court upheld that order.

The petitioner then challenged both orders under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), asserting that restricting his witnesses would prejudice his right to a fair trial.

Whether a petition under Section 528 BNSS could be used to challenge an order after the petitioner had already pursued and lost a revision before the Sessions Court.

Whether the petition should be declined because it was filed approximately eleven months after the revisional order without an explanation for the delay.

Whether the trial court erred in limiting the petitioner’s defence witnesses where the alleged land transactions could be proved through the sale deeds.

Section 438(3) BNSS bars a further revisional application by the same person after an application has been made either to the High Court or to the Sessions Judge; the inherent jurisdiction under Section 528 BNSS cannot be used to circumvent that bar.

Although Section 528 prescribes no limitation period, a petition must be brought within a reasonable time, and the Court treated 90 days—the period for filing a revision—as a reasonable benchmark, requiring an explanation for delay beyond that period; it relied on Eapen Chakoo v. Union Territory of J&K, CRM(M) No. 78/2020, decided 5 July 2022.

An accused need only probabilise a defence, not prove it beyond reasonable doubt; where the relevant land transactions are recorded in sale deeds, the accused may rely on the original or certified copies rather than calling every executant or marginal witness.

The petitioner had already challenged the trial Magistrate’s order by revision and could not use Section 528 BNSS to obtain a further revisional consideration, given Section 438(3)’s bar.

Independently, he filed the petition about eleven months after the revisional order and gave no reason for the delay, exceeding the Court’s 90-day benchmark for reasonable filing time.

On the merits, the Court considered the proposed witnesses’ connection to the land transactions and concluded that the transactions could be established through the sale deeds.

Because the petitioner’s burden was only to probabilise his defence, the trial court was justified in limiting the witness list to those considered essential.

It dismissed the petition and left the orders of the trial Magistrate and revisional court undisturbed.