2021 (10) TMI 983 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt or not - without giving an opportunity to the petitioners the ld. Court below has closed the cross-examination - Principles of natural justice - power to recall the witnesses under section 311 Cr.P.C - HELD THAT - The ld. Court below, in the impugned order dated 03.05.2018, has noted that the case was posted for cross-examination of P.W.1 on 30.05.2017, and since then ample opportunities were afforded to the petitioners to complete cross-examination of P.W.1. But, the accused persons could not avail the opportunity. And on that day, i.e. 03.05.2018, also the petitioners have failed to cross-examine the P.W.1. Instead, on that day neither the accused nor his counsel remained present in the court, though the ld. Counsel has filed hazira in the court. Then being left with no option the ld. Court below has closed the evidence of the P.W.1. The right to cross-examination is a part of right to fair trial, which, every person has in the spirit of the right to life and personal liberty as enshrined in Article 21 of the Constitution of India - In the case in hand, on the relevant date i.e. on 03.05.2018, the petitioner remained absent in the court and his counsel also remained absent though he has filed hazira. Thus, the petitioner remained unrepresented on that day. Therefore, the impugned order, closing the evidence of P.W.1, behind the back of the petitioners and also his counsel, is denial of fair hearing, as it has infringed their right to fair trial. The impugned order dated 03.05.2018, passed by which the ld. Court below closing the evidence of P.W.1, behind the back of the petitioner and his counsel, and subsequent impugned order dated 06.04.2018, by which the ld. Court below, after hearing ld. Advocates of both sides declined to invoke its jurisdiction under section 311 Cr.P.C, to allow the petitioners to cross-examine P.W.1 and other listed witnesses of the complainant withstand the test of legality, propriety and correctness - Here in this case, it appears from the impugned order dated 03.05.2018, that in a span of almost one year, ample opportunities were afforded to the petitioners. But, the petitioners have failed to avail the same. They have failed to assign any reason, not to speak of a plausible one, as to why they could not cross-examine the P.W.1. There are sufficient merit in this revision petition, and accordingly, the same stands allowed.

Summary

Issues Involved:
1. Legality and propriety of the order closing cross-examination of P.W.1.
2. Issuance of Non-Bailable Warrant of Arrest (NBWA) against petitioners No. 2 and 3.
3. Rejection of petition under section 311 Cr.P.C. to allow cross-examination of P.W.1.
4. Alleged misuse of cheque by the respondent.
5. Right to a fair trial and the right to cross-examine witnesses.

Issue-wise Detailed Analysis:

1. Legality and Propriety of the Order Closing Cross-Examination of P.W.1:
The petitioners challenged the order dated 03.05.2018, by which the Judicial Magistrate closed the cross-examination of P.W.1. The petitioners argued that the closure of cross-examination without providing them an opportunity to cross-examine P.W.1 caused prejudice and was a denial of fair hearing. The court noted that the petitioners and their counsel were absent on the day of the order, which led to the closure of evidence. The court emphasized the importance of cross-examination in ensuring a fair trial and concluded that the order was passed in violation of the principles of natural justice.

2. Issuance of Non-Bailable Warrant of Arrest (NBWA) Against Petitioners No. 2 and 3:
The order dated 03.05.2018 also included the issuance of NBWA against petitioners No. 2 and 3. The court did not specifically address the NBWA in detail but implied that the issuance of such a warrant without giving the petitioners an opportunity to be heard was part of the procedural irregularity.

3. Rejection of Petition under Section 311 Cr.P.C. to Allow Cross-Examination of P.W.1:
The petitioners filed a petition under section 311 Cr.P.C. to recall P.W.1 for cross-examination, which was rejected by the Judicial Magistrate on 06.04.2019. The petitioners argued that the rejection was an abuse of judicial discretion and that cross-examination was necessary to reveal the truth. The court highlighted that section 311 Cr.P.C. allows the court to summon or recall witnesses if their evidence is essential for a just decision. The court found that the rejection of the petition perpetuated the injustice caused by the initial order and was not based on sound legal principles.

4. Alleged Misuse of Cheque by the Respondent:
The petitioners contended that there was no legally enforceable debt and that the respondent misused the cheque. They argued that cross-examination of P.W.1 was necessary to establish this defense. The court acknowledged the petitioners' argument but focused more on the procedural aspect of the right to cross-examine rather than the substantive defense of cheque misuse.

5. Right to a Fair Trial and the Right to Cross-Examine Witnesses:
The court underscored that the right to cross-examine is a fundamental aspect of a fair trial, as enshrined in Article 21 of the Constitution of India. The court cited several Supreme Court judgments emphasizing the importance of cross-examination in discrediting witnesses and ensuring a just decision. The court concluded that the denial of the opportunity to cross-examine P.W.1 infringed the petitioners' right to a fair trial.

Conclusion:
The court allowed the revision petition, setting aside the impugned orders dated 03.05.2018 and 06.04.2019. The court directed the parties to appear before the Judicial Magistrate on 12.11.2021, allowing the petitioners a chance to cross-examine P.W.1. The court emphasized that if the petitioners failed to cross-examine P.W.1 on the given date or a subsequent date fixed by the lower court, the trial would proceed to the next stage. The court ordered that each party bear its own costs.