2021 (8) TMI 827 - HC - Indian Laws

Dishonor of Cheque - inspite of opportunity granted, cross-examination of complainant was not done - HELD THAT - It is true that matter was adjourned on the count of ill health of the advocate of accused as well as due to pandemic situation. It is also a matter of record that accused was directed to deposit ₹ 1,80,000/- which he failed to deposit. However, in the present petition the said amount was deposited by Demand Draft in the name of complainant. If roznama dated 16.08.2019 is perused the accused was absent. His advocate Noronha was represented through Shri V. Naik. Thus order was passed in the absence of accused as well as his advocate. Exemption was granted to the accused. However application for grant of adjournment was rejected and cross of PW1 was closed. Roznama of previous date shows that there was application filed by Counsel for accused alongwith medical certificate. On all these dates where adjournment is granted the advocate for accused sought exemption of his appearance. Thus, accused may not be having any idea whether the evidence of PW1 will be closed or even if he is having idea the advocate for accused appears to be not well and was seeking adjournments - It also reveals from the roznama that the cross of PW1 had commenced but ultimately it could not be concluded for one or the other reason. Though amount of ₹ 1,80,000/- has been deposited in this Court the accused avoided to pay the same since long. The hardship and inconvenience caused to the complainant also cannot be overlooked. He can be compensated by way of costs. In view of this background also it is necessary to expedite the matter - petition allowed.

Summary

Issues Involved:
1. Maintainability of the petition.
2. Nature of the order as interlocutory or final.
3. Rejection of the application for adjournment and closure of cross-examination.
4. Application under Section 311 for recalling the complainant for cross-examination.
5. Compliance with the order for interim compensation.

Issue-wise Detailed Analysis:

1. Maintainability of the Petition:
The learned Counsel for the complainant raised a preliminary objection regarding the maintainability of the petition, asserting that a revision is maintainable instead. The accused's counsel countered this by citing the case of Madhu Limaye V/s. State of Maharashtra, arguing that the order in question is interlocutory and hence a petition is the appropriate remedy. The court agreed with the accused's counsel, referencing the legal principle that an interlocutory order, which affects the rights of the parties materially, can be challenged through a petition.

2. Nature of the Order as Interlocutory or Final:
The dispute centered on whether the order rejecting the application for adjournment and closing the cross-examination was interlocutory. The court examined precedents, including Deborah Mary Crasto Leclerc V/s. Patrick Oliver Leclerc, and Amarnath & Ors. V/s. State of Haryana & Ors., concluding that the order was interlocutory. The court emphasized that orders which substantially affect the rights of the parties are not merely procedural and thus can be challenged.

3. Rejection of the Application for Adjournment and Closure of Cross-Examination:
The court reviewed the sequence of adjournments and the reasons provided, noting that the accused and his counsel had repeatedly sought adjournments on various grounds, including health issues and the pandemic. The court found that the accused was not diligent in availing his last opportunity to cross-examine the complainant. However, considering the principle laid down in State Bank of India V/s. Km. Chandra Govindji, the court decided that the mere history of adjournments should not preclude the granting of a fair opportunity if the reason for the current adjournment is reasonable.

4. Application under Section 311 for Recalling the Complainant for Cross-Examination:
The court addressed the application under Section 311 of the Code of Criminal Procedure, which allows recalling a witness if it is essential to the just decision of the case. The court noted that the Judicial Magistrate had no inherent power to recall its own order and that the application under Section 311 should not be used to fill up lacunae in the defense. The previous order allowing the application under Section 311 was quashed by the High Court, as it lacked sufficient reasoning and was not essential for the just decision of the case.

5. Compliance with the Order for Interim Compensation:
The accused was directed to deposit an interim compensation amount of ?1,80,000/-, which he failed to do initially. This non-compliance was a significant factor in the closure of the cross-examination. However, during the proceedings of the current petition, the accused deposited the amount in the court, which influenced the court's decision to grant a fair opportunity for cross-examination.

Conclusion and Order:
The court allowed the petition, quashing the order dated 16.08.2019 that rejected the adjournment and closed the cross-examination of PW1, subject to the condition that the accused pays ?10,000/- as costs to the complainant. The parties were directed to appear before the Additional Judicial Magistrate First Class, Margao, and the accused was instructed to conclude the cross-examination within two weeks. The criminal case was expedited to ensure a swift resolution.