Himachal Pradesh High Court
Ashwani Kumar Sharma vs M/S Himachal Fabrics on 19 May, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 540 of 2018 a/w Cr.MMO
.
No. 539 of 2018
Reserved on: 12.5.2023
Date of decision : 19.5.2023.
1. Cr.MMO No. 540 of 2018
Ashwani Kumar Sharma ...Petitioner.
Versus
M/s Himachal Fabrics ...Respondent
2. Cr.MMO No. 539 of 2018
Ashwani Kumar Sharma ...Petitioner
Versus
M/s Himachal Fabrics ...Respondent.
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes.
For the petitioner(s) : Mr. Karan Singh Kanwwar,
Advocate
For the respondent(s) : Mr. Ashok K. Tyagi, Advocate.
Satyen Vaidya, Judge:
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 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 19/05/2023 20:32:41 :::CIS -2-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 2018By 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 ::: Downloaded on - 19/05/2023 20:32:41 :::CIS -3- 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 ::: Downloaded on - 19/05/2023 20:32:41 :::CIS -4- 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 ::: Downloaded on - 19/05/2023 20:32:41 :::CIS -5- 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 and the matter was adjourned to 12.7.2018 for cross-examination of said witness at the request of learned counsel for accused. However, on 12.7.2018, the impugned order came to be passed, when the complainants themselves had fallen back to place reliance on the statement recorded as preliminary evidence on 13.12.2013.
::: Downloaded on - 19/05/2023 20:32:41 :::CIS -6-12. The above option was exercised by the complainants on 12.7.2018 for the first time.
.
Indisputably, the accused did not get any opportunity to cross-examine the complainant Amit Gupta on the statement recorded as preliminary evidence. The right of accused to cross-examine was closed on the ground that he had failed to file application under Section 145 (2) of the Act. The closure of right to cross examine the witness had the effect of rendering the statement of witness un- rebutted or in a sense admitted.
13. In a criminal prosecution the accused has a right to cross examine prosecution witness unless such right is waived by him. Section 3 of Indian evidence Act defines evidence as under:
"Evidence". --"Evidence" means and includes -- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.::: Downloaded on - 19/05/2023 20:32:41 :::CIS -7-
Section 138 of Indian Evidence Act provides for order of examination of a witness as under:
.
138. Order of examinations. -- Witnesses shall be first examined-in-
chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination. -- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
Hence, the 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. The only requirement is that the party has to be afforded fair chance to cross-examine the witness. Once, the party fails to avail such chance, he cannot subsequently challenge the statement made in examination in chief.
14. It is evident from the impugned order that on 12.7.2018, the accused was not present. The application seeking exemption of accused from personal appearance ::: Downloaded on - 19/05/2023 20:32:41 :::CIS -8- was allowed. Since the option to rely upon the preliminary evidence was exercised by complainants on 12.7.2018 .
itself. The counsel for accused would not be in a position to apply under Section 145(2) of the Act.
15. Learned counsel for the respondent has placed reliance on judgment in Indian Bank Association (supra) and more particularly the directions issued in paragraph 23.4 thereof, which reads as under:-
"23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination."
16. The complainants cannot draw any benefit from aforesaid directions, issued by Hon'ble Supreme Court in view of the peculiar facts of the case. Vide aforesaid direction a duty has been cast upon the Court to ask the accused to take notice under Section 251 Cr.P.C. on the date when the accused appears to furnish the bail bonds.
The Court at that stage is obligated to ask the accused to enter his plea of defence and fix the case for defence ::: Downloaded on - 19/05/2023 20:32:41 :::CIS -9- evidence unless an application is made by the accused under Section 145 (2) for recalling of witness for cross-
.
examination.
17. As noticed above, the accused had put in appearance before learned trial Court for the first time on 20.11.2017. He was put to notice under Section 251 Cr.P.C. on 5.12.2017. At that stage, learned trial Court had not shown strict compliance to afore-mentioned direction and rather had not only fixed the case for recording of evidence of complainants but had recorded statement of one of the complainant's witness on 4.6.2018.
18. Thus, in my considered view the impugned order cannot be sustained as it has divested the accused of his right to cross-examine the prosecution witness. The reason assigned for closing the right of cross-examination also cannot be countenanced for the reason that the accused had not been afforded reasonable opportunity to file the application under Section 145(2) of the Act.
19. It is further revealed from the record that after passing of impugned order, the accused was examined by learned trial Court under 313 Cr.P.C. The accused had ::: Downloaded on - 19/05/2023 20:32:41 :::CIS -10- availed opportunity to lead defence evidence and in order to prove his defence, the accused had moved an .
application under Section 45 of the Indian Evidence Act for orders of learned trial Court to send the questioned signatures of accused on document Ext.-C-7 relied upon by complainants, with his admitted signatures on the "Vakalatnama" filed in the Court. However, the prayer so made by the accused was also rejected by learned trial Court vide order dated 17.11.2018 and one of the ground for such rejection was the fact that claim of the complainant had not been rebutted by the accused by cross-examining him. It had also weighed with learned trial Court that since there was presumption attached to negotiable instrument, the burden in reverse was on the accused to prove that the cheque was not issued with outstanding legal liability. The order dated 17.11.2018 is under challenge before this Court in Cr.MMO No. 539 of 2018.
20. In the given facts and circumstances of the case, there is no hesitation to hold that the impugned order dated 12.7.2018 has not only taken away a valuable ::: Downloaded on - 19/05/2023 20:32:41 :::CIS -11- right of the accused but such order has caused serious prejudice to the right of defence of petitioner in .
proceedings held after passing the impugned order.
21. In light of above discussion, the impugned order dated 12.7.2018, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan in Complaint Case No. 135/3 of 2013 is set aside. As a necessary consequence thereof, the subsequent proceedings and orders passed in Complaint Case No. 135/3 of 2013 are also set aside with a direction to the learned trial Court to afford reasonable opportunity to the accused to cross-
examine the witness of complainant whose statement was recorded as preliminary evidence and thereafter to proceed further in the case. Pending applications, if any, also stand disposed of. Record be sent back forthwith.
Cr.MMO No. 539 of 2018By way of instant petition, the petitioner has challenged order dated 17.11.2018, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan in Case No. 135/3 of 2013.
::: Downloaded on - 19/05/2023 20:32:41 :::CIS -12- In view of judgment passed in Cr.MMO No. 540of 2018, the relief sought in instant petition has been .
rendered infructuous. Consequently, the instant petition is accordingly disposed of.
(Satyen Vaidya)
19th May, 2023 Judge
(kck)
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