In a summary trial proceeding, the right of cross examination is given to the accused only if the accused discloses his defense at the time of taking notice and the Court considers that in order to meet the defense, cross examination of witness was necessary.

Shiv Narayan Dhingra, J.

1. By this petition, the Petitioner assailed Order dated 15.01.2011 passed by the Ld. MM whereby right to cross examine of complainant was closed.

2. The case against the Petitioner was under Section 138 of Negotiable Instrument Act in respect of dishonor of cheque. The Petitioner on previous date of hearing sought copy of statement of account and loan agreement. The statement of account was immediately furnished to the Petitioner and the matter was listed for cross examination of the complainant witness on 15.01.2011. On 15.01.2011 when matter was fixed the counsel for Petitioner told the court that he would not cross examine the witness as counsel for the complainant had not supplied copy of statement of account and the loan agreement as demanded by him on previous hearing. The Ld. MM referred to the previous hearing order and found that the statement of account was supplied to the counsel for Petitioner in the court itself, still the counsel persisted that he was not supplied the documents. All other documents viz. dishonored cheque, return memo, copy of legal notice etc. were available with the Petitioner. However, counsel for the accused persisted that he would not cross examine the complainant witness as the loan agreement was not supplied to him.

3. Counsel for the complainant made statement that he was not relying on loan agreement, on this, Court asked the Counsel to cross examine the witness. The Counsel refused to cross examine the witness despite all this. The Court closed the cross examination.

4. It is submitted by the counsel for Petitioner that Petitioner was entitled for loan agreement and he rightly insisted for supply of loan agreement. The other argument raised is that the witness was not present in the Court. The witness was undergoing cross examination in some other Court. Therefore, his cross examination could not have been closed.

A case under Section 138 of NI Act is a summary trial proceeding. The right of cross examination is given to the accused only if the accused discloses his defense at the time of taking notice and the Court considers that in order to meet the defense, cross examination of witness was necessary. In the present case, the defense taken by the accused was that the cheque was a forged document. He had not taken the defense that he had not taken the loan and the loan agreement was not executed.

5. In view of the statement made by the counsel for the complainant that loan agreement was not being relied upon, it was incumbent upon the Counsel for the accused to cross examine the witness. A counsel cannot take the stand that he would not cross examine witness until and unless his terms and conditions are fulfilled. The Court can only give opportunity to cross examine the witness, the Court cannot force an advocate to conduct cross examination if he is not willing and the only option available with the Court under such circumstances is to close the cross examination. The trial of a case cannot go as per the whim and fancies of either the accused or his Counsel. A summary trial has to be speedier and must end as quickly as possible. No date of hearing can be allowed to be wasted because of adamant attitude of the counsel. The Trial Court therefore rightly closed the cross examination of the witness.

This petition has no force and is hereby dismissed.