ORAL ORDER

By way of present petition under Articles 226 and 227 of the Constitution of India read with provisions of the Code of Criminal Procedure, the petitioner has prayed to quash and set aside the decision dated 29.01.2024 taken by learned Additional Chief Judicial Magistrate, Kapadwanj below Exh.5 application in cross-examination of the complainant whereby the learned Magistrate did not allow the petitioner to put question to the complainant in Criminal Case No.990/2019.

Perusing the record it appears that the witness –

complainant has not denied to give reply to the question put to him by defence in his cross-examination and the learned Magistrate did not allow the defence - petitioner to put question to the complainant and the proceedings of Criminal Case No.990/2019 are stayed so as to enable the petitioner to approach this Court. As the proceedings of Criminal Case No.990/2019 are stayed, with a view to expedite the proceedings of Criminal Case No.990/2019 which is filed under Section 138 of the Negotiable Instruments Act, 1881, and as there is no any adverse order or no any relief sought for in present petition, which may adversely affect the right of the complainant or would prejudice the complainant and as only a short question is involved in the present petition, presence of respondent No.2 is not required and hence, present petition is heard, decided and disposed of ex parte.

Having heard learned advocate for the petitioner and learned APP for the respondent – State of Gujarat and going through the record of the case, it appears that the learned Magistrate did not allow the petitioner – defence to put question to the complainant in his cross-examination in connection with Criminal Case No.990/2019, prima facie, it appears that defence has put a simple question to the complainant as to whether any typing error has crept in the complaint, notice or chief examination of the complainant? Further, without recording any reply to the said question put to the complainant, learned Magistrate has been pleased to put a note that, “said question is in the nature of cross-examination of answer given by witness in his cross-examination”.

Prima facie, it appears that no reply is given by the witness to the said question and as it is a simple question put forth by the defence, same ought to have been permitted by the learned Magistrate. Even if any irrelevant question is put then the Court has to take call and decide whether any objection is raised.

Considering the aforesaid fact, the Court has to decide the relevancy of the question and Court has to record the further evidence rather than to postpone the recording of the evidence which is nothing but delaying the proceeding. As per the mandatory provisions of the Negotiable Instrument Act, once the recording of evidence starts, cross-examination of the witness is required to be completed as early as possible.

In view of the above, note put by the learned Additional Chief Judicial Magistrate, Kapadwanj below Exh.5 on 29.01.2024 is hereby quashed. Learned Additional Chief Judicial Magistrate, Kapadwanj is directed to permit the defence to put question and witness is directed to give reply to the said question.

With aforesaid direction, present petition is disposed of.

Direct service is permitted. (HASMUKH D. SUTHAR, J.)

Ajay