2022 (1) TMI 500 - HC - Indian Laws

Dishonor of Cheque - application praying for deposit of diet money - Section 138 of N I Act - HELD THAT - This Court is of the considered view that herein there is lapse on the part of the accused but the Court below has also contributed towards this lapse by not undertaking the exercise of going through its orders and ascertaining the fate of the process undertaken by the Court to summon the witnesses in terms of the list of witnesses filed by the accused and the diet money deposited by him. Therefore, in these peculiar circumstances, this Court is of the considered view that interest of justice demands that at least one more opportunity be granted to the accused to lead evidence with Court assistance so that justice is done to him. Parties through Counsel are directed to appear before the learned Court below on 06.01.2022, on which date, the case shall be listed by the learned Trial Court for summoning the witnesses of the accused. Thus, an opportunity will be given to the accused to lead evidence. If he fails to avail this opportunity, his right to lead evidence will be closed. The indulgence, which has been shown in favour of the petitioner by the Court today, shall be subject to payment of cost of ₹ 5000/- by the petitioner to the complainants - petition disposed off.

Summary

Issues:
- Adjudication of a Complaint under Section 138 of the Negotiable Instruments Act.
- Recording of defense evidence by the accused.
- Errors in the orders passed by the Trial Court.
- Granting an opportunity to the accused to lead evidence.

Adjudication of Complaint under Section 138:
The case involved a Complaint under Section 138 of the Negotiable Instruments Act pending before the Judicial Magistrate First Class. The legal representatives of the original complainant were the respondents. The accused had his statement recorded under Section 313 of the Code of Criminal Procedure. The Trial Court ordered the case to be listed for defense evidence, and the accused filed an application to deposit diet money for witnesses. The Trial Court allowed this application, and the case was scheduled for recording of defense evidence.

Recording of Defense Evidence:
On subsequent dates, the Trial Court passed orders regarding exemption applications and the absence of defense witnesses. Despite the accused depositing diet money for witnesses, no witnesses appeared on the specified dates. The Trial Court closed the evidence of the accused due to the absence of witnesses, which the High Court found to be an error. The High Court noted that the Trial Court failed to follow up on the process of summoning witnesses despite the diet money being deposited by the accused.

Errors in Trial Court Orders:
The High Court observed lapses on both the part of the accused and the Trial Court. While the accused failed to take necessary steps after depositing diet money, the Trial Court did not properly assess the status of witness summoning processes. The High Court deemed it necessary to grant the accused another opportunity to lead evidence in the interest of justice. The High Court set aside the Trial Court's order closing the accused's evidence and directed the parties to appear before the Trial Court for summoning witnesses.

Granting Opportunity to Accused:
The High Court granted the accused an additional opportunity to lead evidence and ordered the accused to furnish a fresh list of witnesses along with fresh diet money. The accused was directed to pay a cost of ?5000 to the complainants, subject to which the permission to lead evidence would be effective. Failure to pay the cost would result in the cessation of this indulgence. The petition was disposed of with these directions.

This detailed analysis of the judgment from the Himachal Pradesh High Court highlights the issues involved, the sequence of events, the errors identified, and the corrective measures taken to ensure a fair adjudication process for the accused.