2022 (5) TMI 68 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - opportunity of cross-hearing - allegation is that petitioner has repeatedly filed applications and has not availed the opportunity of cross-examination earlier granted - HELD THAT - Though the case is of the year 2013, the examination-in-chief happens in the year 2019 when the present respondent enters into the proceedings as the representative of the complainant, who dies during the pendency of the proceedings. After the said date, there has been continuous adjournments in the matter and for the first time, an application was filed on 04.10.2021 by the petitioner seeking cross-examination of PW-2 under Section 311 of the Cr.P.C. The said application came to be allowed on 06.11.2021. The fact remains that the learned counsel appearing for the petitioner-accused has not been able to cross-examine the complainant at any point in time in the proceeding. Therefore, it would become a case where there is no cross-examination permitted to the petitioner and result in miscarriage of justice. Since the petitioner is the accused, all opportunity to the accused to protect himself or defend himself should be granted, this is the purport of Section 311 of the Cr.P.C. Section 311 of the Cr.P.C. mandates that the application can be preferred at any stage of proceedings. Thus in the light of the fact that the learned counsel appearing for the petitioner has not cross-examined the complainant at all, it is deemed appropriate to grant one more opportunity to the learned counsel for the petitioner to cross-examine PW-2 on a particular date and conclude the same on the said date. He shall not be entitled to file any application under Section 311 of the Cr.P.C. seeking recall or for further cross-examination of PW-2, but this would be on imposition of costs - petition allowed.

Summary

Issues:
Cross-examination of witness under Section 311 of Cr.P.C.

Analysis:
1. The petitioner, an accused, issued cheques in a transaction with the respondent, leading to proceedings under Section 138 of the Negotiable Instruments Act, 1881 initiated by the respondent in 2013.
2. The petitioner filed an application under Section 311 of the Cr.P.C. seeking cross-examination of PW-2, which was allowed with a cost of Rs. 1,000, directing to conclude by 30.11.2021. However, the petitioner failed to cross-examine PW-2 on the said date citing personal inconvenience.
3. Subsequently, another application for cross-examination was filed and rejected as the petitioner had multiple opportunities for cross-examination but failed to utilize them, leading to the rejection of the successive application.
4. The petitioner contended that not cross-examining PW-2 would result in a miscarriage of justice as it is essential for the accused to defend himself. Citing the judgment in V.N. PATIL, V.K. NIRANJAN KUMAR (2021) 3 SCC 661, the petitioner sought one more opportunity for cross-examination.
5. The Court, considering the principles under Section 311 CrPC, granted one final opportunity for cross-examination with a cost of Rs. 3,000 to be paid to the complainant, emphasizing that no further application under Section 311 would be entertained.

This detailed analysis covers the issues involved in the legal judgment, focusing on the petitioner's right to cross-examine under Section 311 of the Cr.P.C. and the Court's decision to grant one final opportunity for cross-examination while imposing costs and restricting further applications under the same provision.