Point of Law: Under Section 138 of the Evidence Act, which confers a valuable right of cross-examination of a witness and documents tendered in evidence by opposite party and the enlarged scope under Section 146 of the Evidence Act to cross examine a witness to test his veracity.

JUDGMENT :

A decree was passed in a suit for realization of money based on a cheque by the trial court, against which the defendant came up mainly on the ground that the court below accepted additional proof affidavit and documents produced along with it exhibited as A3, A4 and A5,without affording an opportunity of cross- examination. An additional proof affidavit was submitted after the examination of plaintiff and closing of the evidence. Along with the additional affidavit, three documents were produced, which were marked as Exts.A3 to A5. Additional affidavit and the documents marked were taken up, discussed and appreciated as piece of evidence and relied on by the trial court without affording an opportunity to cross- examine the witness or the documents thereof. Thereby, the mandate under Sections 137 and 138 of the Evidence Act has been overlooked by the trial court. The right of cross-examination of a witness on any crucial aspect and on the documents relied on is an indefeasible right. The only exception to this general rule is under Section 139 of the Evidence Act, when a person is summoned for mere production of a document and not as a witness. There shall not be any misunderstanding between denial of right of cross- examination, failure to conduct cross-examination and waiver of such right of cross-examination. Among these three, the first one alone would make the chief examination inadmissible in evidence. There may be cases in which there is failure on the part of opposite party or opponent to cross examine the witness or waiver of the right of cross examination. In both these cases, the oral testimony by way of chief examination would acquire the character of evidence.

2. In State of U.P. v. Nahar Singh (dead) [(1998) 3 SCC 561), the Apex Court had considered the principle embodied under Section 138 of the Evidence Act, which confers a valuable right of cross-examination of a witness and documents tendered in evidence by opposite party and the enlarged scope under Section 146 of the Evidence Act to cross examine a witness to test his veracity.

3. The right of cross-examination is not a mere formality to be complied with, but it should reflect sufficient opportunity afforded to cross-examine the witness on all disputed matters. The extensive nature of right of cross-examination was also laid down by the Apex Court in Dahyabhai Chhaganbhai Thakker v. State of Gujarat (AIR 1964 SC 1563), wherein a new and important matter was allowed to be introduced in re examination without affording sufficient opportunity to cross-examine the witness on the newly introduced matter and it was held that the three minutes time given for cross-examination is insufficient.

4. Then comes the question what would be the legal position when the witness died after the chief examination, but before cross-examination or before completion of cross-examination. It was held by the Apex Court in Satnam Singh v. Sadhu Singh 2001 (8) Supreme 574) that in such situation, it is not permissible to eschew the entire oral evidence tendered by the witness. The relevant portion of the judgment is extracted below:

“It has come on evidence on record that Teja Singh, one of the attesting witnesses, after his examination-in- chief died and therefore, he could not put up for cross-examination. Under such circumstances, the evidence of Teja Singh could not have been excluded. Similarly, the evidence of Jagdish Singh Uppal, the Scribe, ought not to have been rejected on the ground that he did not know the parties personally. We are, therefore, of the opinion that the view taken by the High Court in rejecting the plaintiffs' evidence was erroneous.”

5. When the witness died after chief examination and before cross-examination, the court cannot eschew the entire oral testimony, but should seek corroboration by other pieces of evidence and in the absence of such corroboration, the court will be justified in rejecting the entire version given in chief examination. The