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2023 (10) TMI 1210 - HC - Indian LawsDishonour of Cheque - insufficient funds - right of the petitioner to cross-examine the complainant is closed - HELD THAT - Admittedly, the petitioner has already paid the cost imposed by the learned Trial Court for the purpose of conducting cross-examination of the complainant, and as clear from the contents of present petition and the arguments addressed before this Court, the petitioner has sought setting aside of the impugned order dated 11.04.2023 only on the ground that in the said order, learned Sessions Court had failed to consider the contentions raised by the petitioner/revisionist therein regarding the maintainability of the complaint case under Section 219 of Cr.P.C. and had not passed any order qua the same. As clear from the bare perusal of the records, the order dated 20.03.2023, which was impugned before the learned Sessions Court, did not record any observations on the maintainability of the complaint under Section 219 of Cr.P.C., rather only pertained to the right of accused to cross-examine the complainant - It is also not in dispute that the petitioner/accused has till date not challenged the order dated 16.04.2022 passed by the learned Trial Court vide which his application under Section 219 of Cr.P.C. was dismissed and though he had made references to the said order in his criminal revision petition filed before the learned Sessions Court and had taken a ground that the proceedings in the present complaint case were bad in law due to bar under Section 219 of Cr.P.C., the petitioner had still not assailed the order dated 16.04.2022 but had only challenged the order dated 20.03.2023 by virtue of which the learned Trial Court had closed his right to cross-examine the complainant. There was no occasion for the learned Sessions Court to have recorded any findings on the issue of whether the complaint was maintainable or not since the same was not an issue before the learned Sessions Court. Thus, there are no grounds to set aside the order dated 11.04.2023 passed by the learned Sessions Court. Petition dismissed.
Issues:
The issues involved in the judgment are the maintainability of the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the right of the accused to cross-examine the complainant under Section 219 of the Code of Criminal Procedure, 1973. Maintainability of Complaint: The complaint was filed under Section 138 of the Negotiable Instruments Act, alleging dishonor of multiple cheques. The accused argued that the complaint was not maintainable under Section 219 of the Cr.P.C., which allows a maximum of 3 cheques to be tried together within 12 months. The Trial Court dismissed the accused's application under Section 219, leading to a revision petition. The Sessions Court set aside the Trial Court's order and granted the accused an opportunity to cross-examine the complainant upon payment of a cost of Rs. 1 lakh. Right to Cross-Examine: The accused sought to challenge the Trial Court's order but had repeatedly sought adjournments, leading to the closure of his right to cross-examine the complainant. The Sessions Court allowed the accused one effective opportunity to cross-examine the complainant upon payment of costs. The accused challenged this order on the grounds that the Sessions Court did not consider the maintainability of the complaint under Section 219 of the Cr.P.C. Judgment Analysis: The petitioner argued that the Sessions Court failed to address the maintainability of the complaint under Section 219 of the Cr.P.C. The Court examined the records and found that the petitioner had not challenged the Trial Court's order dismissing his application under Section 219. The Sessions Court's order only pertained to the right to cross-examine the complainant. As the issue of maintainability was not raised before the Sessions Court, there were no grounds to set aside its order. The petitioner was advised to avail remedies if aggrieved by the Trial Court's order. Conclusion: The petition was dismissed, and pending applications were also rejected. The judgment was directed to be uploaded on the website promptly.
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