Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 307

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SATYEN VAIDYA, J.
Ashwani Kumar Sharma - Petitioner
Versus
M/s Himachal Fabrics - Respondent
Cr.MMO No. 540 of 2018 a/w Cr.MMO No. 539 of 2018
Decided On : 19-05-2023

Advocates Appeared:
For the Petitioner: Mr. Karan Singh Kanwwar.
For the Respondent: Mr. Ashok K. Tyagi.

Point of Law: Statement of a witness without affording a right to cross -examine and re-examine as per above provision of law cannot be considered to be complete.

Headnote:
Criminal Procedure Code, 1973 – Section 313, 251, 313 - Negotiable Instruments Act, 1881 - Section 138, 145, (2) - Indian Evidence Act, 1872 - Section 3, 45, 138 - Liability to pay - Cheque was dishonoured - Petitioner has challenged order passed - Petitioner has been denied right of cross-examination without any default on his part – Accused had availed opportunity to lead defence evidence and in order to prove his defence - Para 19.
Finding of the Court: Reason assigned for closing right of cross-examination also cannot be countenanced for reason that accused had not been afforded reasonable opportunity to file application under Section 145(2) of Act - Accused had availed opportunity to lead defence evidence and in order to prove his defence, accused had moved an application under Section 45 of Indian Evidence Act for orders of learned trial Court to send questioned signatures of accused on document Ext.-C-7 relied upon by complainants, with his admitted signatures on “Vakalatnama” filed in Court - Since there was presumption attached to negotiable instrument, burden in reverse was on accused to prove that cheque was not issued with outstanding legal liability - There is no hesitation to hold that impugned order has not only taken away a valuable right of accused but such order has caused serious prejudice to right of defence of petitioner in proceedings held after passing impugned order - Impugned order passed is set aside.
Result: Petition disposed of.

JUDGMENT :

(Satyen Vaidya, J.) :

1. Both these petitions have been heard and are being decided together, as both have arisen from proceedings in Case No. 135/3 of 2013 pending before learned chief Judicial magistrate, Sirmour at Nahan and are so interconnected that adjudication of issue involved in one will have effect on the other.

Cr.MMO No. 540 of 2018

By way of instant petition, the petitioner has challenged order dated 12.7.2018, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan in Case No. 135/3 of 2013.

2. The impugned order reads as under:-

“Exemption application on behalf of accused filed and allowed.

At this stage, complainant has made a statement that he has already led preliminary evidence and same may be read as a whole in the main case file and does not want to lead further evidence.

In view of this, the evidence of the complainant is closed.

Similarly, accused also failed to file application 145(2) NI Act. Therefore, his right to cross examine the witness is also struck off.

Let file be put for statement of accused u/s 313 Cr.P.C. for 9.8.2018.”

3. The grievance of the petitioner is that petitioner has been denied right of cross-examination without any default on his part. The impugned order is not only against the basic tenets of criminal jurisprudence but is also harsh upon the petitioner.

4. On the other hand, learned counsel for the respondent has supported the impugned order on the strength of provisions, as contained in Section 145 of Negotiable Instruments Act, 1881 (for short ‘the Act’) and the dictum, as pronounced by Hon’ble Supreme Court, in its judgment passed in case of Indian Bank Association & others vs. Union of India & others, reported in 2014(5) SCC 590.

5. I have heard learned counsel for the parties and have also gone through the record carefully.

6. In original complaint, in addition to respondents herein, one Sh. Shyam Lal Gupta, son of Sh. Fakir Chand was also the complainant. He has died during the pendency of the petition.

7. The complainants filed the complaint under Section 138 of the Negotiable Instruments Act against petitioner herein, (for short ‘the accused’) with the allegations that the accused was under legal liability to pay a sum of Rs. 5,00,000/- to the complainants. A cheque in the sum of Rs. 5,00,000/- was issued by accused favouring the complainants. On presentation of the cheque for encashment, it was dishonoured and was returned unpaid to the payee. Despite demand notice, issued to the accused, he failed to make the payment to the complainants.

8. Resultantly, the accused is facing prosecution for offence under Section 138 of the Act in Complaint No. 79/3 of 2016.

9. In order to analyse the merits of rival contentions raised on behalf of the parties, it is necessary to notice the manner in which the proceedings have taken place before learned trial Court in Complaint Case No.79/3 of 2016/135/3 of 2013.

10. Record reveals that on 13.12.2013, the statement of one of complainants, Shri Amit Gupta, was recorded by learned trial Court as preliminary evidence on behalf of the complainants and thereafter on the statement of learned counsel for the complainants, the preliminary evidence of complainants was closed. On 2.1.2014, learned trial Court took cognizance of the offence under Section 138 of the Act and summoned the accused. Thereafter, the case was adjourned from time to time for service of accused and in the meanwhile, the case was transferred to the Court at Kalka and was again transferred back to Nahan. Finally, on 20.11.2017, the accused was produced before learned trial Court at Nahan and he was remitted to judicial custody.

11. On 5.12.2017, notice of accusation was put to accused and he pleaded not guilty. Case was adjourned to 6.2.2018 for recording the evidence of complainants. Thereafter, the matter was adjourned for same purpose to 19.4.2018 and further to 4.6.2018, on which date, the statement of one witness of complainants i.e. Shri Amit Gupta was recorded

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