A party's default in cross-examining a witness can be compensated by imposing costs, but they should not be deprived of the opportunity to cross-examine in the interest of justice.

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 7541/2018

Kishan Singh Gurjar, R/o Sky Lark, Tata Ship And Land

Development Pvt. Ltd.92, Laxmi Nagar, Niwaru Road, Bypass,

Jaipur.

----Petitioner

Versus

Hanuman Sahay S/o Shri Narsi Ram B/c Yadav, R/o Nath Ji Ki

Thadi, Plot No.11-12, Niwaru Road, Jaipur.

----Respondent

For Petitioner(s)

:

Mr. Sanjay Rahar.

For Respondent(s)

:

Mr. S.L. Songara, for Complainant.

Mr. Ramesh Choudhay, PP.

HON'BLE MR. JUSTICE FARJAND ALI

Order

03/01/2022

By way of filing instant criminal misc. petition, challenge has

made to the order dated 20.10.2018 passed by learned Special

Metropolitan Magistrate (NI) Act Cases No.17 Metropolitan City,

Jaipur in criminal complaint No. 2016/2013 titled as Hanuman

Singh versus Krishan Singh whereby application filed by the

petitioner under Section 311 Cr.P.C. has been dismissed as well as

against the order dated 10.09.2018 whereby opportunity of cross-

examining the witness has been closed.

Bereft of elaborate details brief facts necessary for the

disposal of the instant petition are that the petitioner is facing trial

for the accusation of committing offence under Section 138 NI Act.

After giving ample opportunities to the accused petitioner to

cross-examine the complainant, last opportunity had been given

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[CRLMP-7541/2018]

to him at the cost of deposition of Rs. 1,000/- and the matter was

posted on 10.09.2018. However, on that day, neither the accused

nor his counsel was present before the Court and therefore right

to cross-examine the complainant had been lodged and the bail

bonds were forfeited. On 11.10.2018, the accused petitioner

moved an application under Section 311 of Cr.P.C. for giving him

another opportunity to cross-examine the witness while showing

the bonafide reasons of his and his counsel’s absence on

10.09.2018. The said application has been dismissed by the

learned Judicial Magistrate on the ground that the accused is

protracting the trial on the one and the other lame excuses vide

order dated 20.10.2018.

The said order dated 20.10.2018 is under challenge before

this Court.

Heard learned counsel for the petitioner and the complainant

and perused the material available on record. Though ample

opportunities were provided to the accused to cross-examine the

witness which has not been encashed by the him. This Court is of

the firm view that the default made by a party and whereby

creating inconvenience to the opposite party can be cured and

compensated by way of imposing cost upon the erring party but

for the same reason he cannot be deprived from getting justice

and providing him adequate opportunity to shake the credibility of

the witness. Thus, it is deemed in the interest of justice to give

one more opportunity to the accused petitioner to cross-examine

the witness (the complainant) provided he pays cost of Rs. 7000/-

to the complainant for the inconvenience caused to him in making

his appearance again in the trial Court.

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[CRLMP-7541/2018]

Accordingly, the instant misc. petition is allowed. The order

dated 20.10.2018 passed by the earned Special Metropolitan

Magistrate (NI) Act Cases No.17 Metropolitan City, Jaipur in

criminal complaint No. 2016/2013 is hereby quashed and set aside

and it is directed that on the next date of hearing before the trial

Court, a further date shall be fixed by the learned trial Court for

the purpose of cross-examining the complainant, for that the

learned trial Court shall instruct the counsel for the complainant as

well issue process against the witness for his appearance. On the

further date when the witness would appear before the learned

trial Court, the petitioner at first would pay a cost of Rs. 7,000/-

to the complainant through the Court and thereafter counsel for

the accused shall be permitted to cross examine