The High Court of Jammu, Kashmir and Ladakh dismissed a petition under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 challenging orders that restricted defence witnesses in a Section 138 Negotiable Instruments Act case. The Court held the petition was barred by Section 438(3) BNSS which prohibits a second revision, was filed after an unexplained eleven-month delay, and lacked merit because the defence could be established through documentary evidence rather than numerous witnesses.
Background & Facts
The Dispute
The respondent, S. Gagandeep Singh, filed a complaint against the petitioner, Bansi Lal Bhardwaj, under Section 138 of the Negotiable Instruments Act in respect of a cheque dated 20.09.2009 for an amount of ₹10,00,000 drawn on Jammu Rural Bank, Bohri Patta Jammu. The petitioner, as accused, opted to enter his defence and sought to produce nineteen witnesses to prove that he did not owe any money to the complainant.
Key Facts
- The complainant concluded his evidence and on 20.04.2019, the statement of the petitioner/accused under Section 342 of the J&K Cr.P.C. was recorded.
- In his statement, the petitioner alleged that the complainant is a property dealer who persuaded the petitioner's friends and relatives to sell their lands.
- The petitioner stated that the complainant sold about 30 kanals of land to clients after purchasing from the petitioner's friends and relatives at ₹1.46 lacs per kanal and selling at ₹2.30 lacs per kanal.
- One relative, Sh. Sham Lal, refused to sell after learning of the price difference.
- The petitioner claimed a settlement was reached whereby the complainant would get back the land from clients and pay back at ₹3.00 lacs per kanal, and six cheques were issued by the petitioner per this settlement.
- The complainant allegedly did not adhere to the settlement and refused to return the land.
- To prove this defence, the petitioner furnished a list of 19 witnesses and deposited their diet expenses. Most witnesses were sought to prove the alleged sale transactions.
Procedural History
- 11.09.2023: Learned trial Magistrate (Judicial Magistrate 1st Class, City Judge, Jammu) passed order allowing the petitioner to record statements of two witnesses already examined, permitting examination of one out of witness Nos. 18 and 19, and witness No. 17 (Record Keeper, Income Tax Department). The application for other witnesses was disallowed on the ground that the long list was filed to protract proceedings.
- 16.11.2024: Learned revisional court (3rd Additional Sessions Judge, Jammu) upheld the trial court's order.
- 15.10.2025: Present petition under Section 528 BNSS filed before the High Court challenging both orders.
The Parties' Positions
The petitioner contended that truncating the witness list infringed his right to a fair trial and would cause prejudice to his defence. The respondent supported the lower courts' orders, arguing the witness list was excessive and intended to delay proceedings.
Relief Sought
The petitioner sought quashment of the order dated 16.11.2024 passed by the revisional court and the order dated 11.09.2023 passed by the trial Magistrate, and a direction to allow all nineteen defence witnesses.
The Legal Issue
The central questions were: (1) Whether a petition under Section 528 BNSS is maintainable after a revision petition challenging the same orders has already been decided, given the bar under Section 438(3) BNSS; (2) Whether the petition filed after an eleven-month delay without explanation is maintainable; (3) Whether the trial court correctly truncated the list of defence witnesses.
Arguments Presented
For the Petitioner
Counsel for the petitioner, Mr. Rohit Sharma, argued that denying the petitioner the opportunity to examine his chosen witnesses would amount to infringing his right to a fair trial. It was submitted that the defence relied on proving land sale transactions through multiple witnesses, and truncating the list would cause irreparable prejudice to the defence case.
For the Respondent
Counsel for the respondent, Mr. Himanshu Beotra, contended that the petition was not maintainable under Section 438(3) BNSS which bars a second revision. He further argued that the petition was filed after inordinate delay without any explanation, and that the trial court correctly exercised its discretion to limit witnesses to those essential for the defence, as the transactions could be proved by documentary evidence.
The Court's Analysis
The Court first addressed maintainability under Section 438(3) BNSS. The provision states that if an application has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person can be entertained by either of them. The Court observed that the petitioner had already challenged the trial court's order by way of a revision petition before the revisional court, and the present petition under Section 528 BNSS was, in effect, invoking the revisional powers of the High Court after having failed before the revisional court. The Court held:
"In view of the provisions contained in sub section (3) of section 438 of the BNSS, the present petition is not maintainable. It is true that the High Court is vested with inherent powers under section 528 of BNSS to prevent abuse of process of court or to secure the ends of justice, but the said power cannot be used to circumvent a bar contained under any other provision of the Sanhita."
On the issue of delay, the Court noted the impugned revisional order was passed on 16.11.2024 while the petition was filed on 15.10.2025, a gap of about eleven months. Although no period of limitation is prescribed for petitions under Section 528 BNSS, the Court held such petitions must be filed within a reasonable time. Drawing analogy from the 90-day limitation period for revision petitions, the Court treated 90 days as a reasonable time and required the petitioner to explain any delay beyond that period. Citing Eapen Chakoo vs. Union Territory of J&K [CRM(M) No. 78/2020, decided on 05.07.2022], the Court refused to entertain the petition on the ground of delay and laches as no plausible reason was furnished.
On merits, the Court examined the petitioner's defence concerning land sale transactions. It held that such transactions can be proved by placing on record original or certified true copies of the sale deeds. The Court emphasized:
"An accused is not required to prove his defense beyond reasonable doubt. He has only to probablise his defense. 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 Court concluded the petitioner could prove his defence by producing the sale deeds or certified copies, and there was no necessity to produce the remaining witnesses. The trial court was therefore right in truncating the list and confining it to essential witnesses.
The Verdict
The petition was dismissed. The Court held: (1) The petition under Section 528 BNSS is not maintainable as it is barred by Section 438(3) BNSS which prohibits a second revision; (2) The petition was filed after an unexplained delay of eleven months, well beyond the reasonable period of 90 days; (3) On merits, the defence can be established through documentary evidence (sale deeds or certified copies) and the trial court correctly limited witnesses to those essential for the defence. No costs were awarded.
What This Means For Similar Cases
Inherent Powers Cannot Override Statutory Bars
- Practitioners must recognize that Section 528 BNSS (inherent powers) cannot be invoked to circumvent the specific bar on second revisions under Section 438(3) BNSS.
- Once a revision petition has been decided by either the Sessions Judge or the High Court, the same party cannot file a second petition under Section 528 challenging the same orders.
- This principle reinforces finality in criminal revisional jurisdiction.
Reasonable Time Limit for Section 528 Petitions
- Although Section 528 BNSS prescribes no limitation period, the Court has imported a 90-day reasonable time standard by analogy to revision petitions.
- Petitioners must file within 90 days of the impugned order or furnish a plausible explanation for delay.
- Unexplained delays of several months will result in dismissal on grounds of laches, regardless of merit.
Documentary Evidence Suffices for Probabilising Defence
- In Section 138 NI Act cases, an accused need only probablise the defence, not prove it beyond reasonable doubt.
- Land sale transactions central to the defence can be proved through original or certified copies of sale deeds without examining executants or marginal witnesses.
- Trial courts have discretion to truncate excessive witness lists where documentary evidence can establish the defence, preventing protraction of proceedings.
