The right to cross-examine can be forfeited through negligence, and courts may reject applications to recall such rights if the accused fails to act timely.

ORDER :

1. By way of present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), petitioner has challenged the order dated 16.09.2022 passed by learned Special Judicial Magistrate, NI Act Cases No. 4, Udaipur (hereinafter referred to as ' learned trial Court'), whereby the petitioner's application under Section 311 of the Cr.P.C. has been rejected.

2. Narrated briefly the facts germane are that the petitioner is an accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') filed by the respondent.

3. On 01.04.2022, the learned trial Court has closed petitioner's right to cross-examine the complainant. Thereafter, the present petitioner moved an application on 03.08.2022 under Section 311 of the Cr.P.C. and prayed that the order dated 01.04.2022 be recalled and/or his application under Section 311 of the Cr.P.C. be allowed and he be permitted to cross-examine the complainant.

4. The learned trial Court rejected above referred application dated 03.08.2022 by the impugned order while observing that the Court had given last opportunity on 4 occasions (i.e. on 29.01.2021, 09.03.2021, 28.09.2021 and 15.02.2022) and yet the accused/his counsel was not prepared to cross-examine the complainant for which his right to cross-examine was rightly closed on 01.04.2022.

5. Mr. Avin Chhangani, learned counsel for the petitioner argued that the right to cross-examine is a very important right of an accused and the same should not be taken away in the manner the same has been done by the learned trial Court.

6. Learned counsel relied upon judgment of Hon'ble the Supreme Court rendered in the case of Varsha Garg v. State of Madhya Pradesh & Ors. in Criminal Appeal No. 1021/2022 and argued that the observation made by Hon'ble the Supreme Court, the petitioner's application under Section 311 of the Cr.P.C. ought to have been allowed.

7. Heard learned counsel for the petitioner and perused the record.

8. A simple look at the order impugned reveals that the learned trial Court while rejecting petitioner's application has categorically observed that though as many as 4 opportunities were granted to the petitioner to cross-examine the complainant (on 29.01.2021, 09.03.2021, 28.09.2021 and 15.02.2022), the petitioner/his counsel chose not to cross-examine the complainant and thereafter, on 01.04.2022 also the petitioner did not appear and his counsel prayed for further time to cross-examine.

9. It is to be noted that even after passing of 4 months of closing the right to cross-examine, the petitioner did not file any application and the subject application came to be filed on 03.08.2022.

10. A further fact to be noticed is, that the order impugned was passed on 16.09.2022 and the present petitioner did not care to take his remedies. The present petition to challenge such order was not filed for a considerable period of one year and two months.

11. The present petition has been filed on 28.11.2023 with a delay of at least 14 months, which clearly shows that petitioner's endeavour is to protract the proceedings by hook or by crook. If he was serious, he ought to have challenged the order dated 16.09.2022 immediately.

12. So far as the judgment relied upon by the learned counsel for the petitioner is concerned, the same has been passed on entirely different facts. In said case, [Varsha Garg (supra)], the facts were that the complainant had been examined, where after an application came to be filed by the petitioner therein for re-examination of such witness and considering the facts and situation of the case, Hon'ble the Supreme Court has held that the petitioner had a valuable right to cross-examine the complainant, whereas in the present case, the petitioner for his own negligent attitude has practically abandoned his right to cross-examine, inasmuch as despite having availed 5 opportunities, the petitioner/ his counsel chose not to cross-examine