2023 (5) TMI 1368 - HC - Indian Laws

Dishonour of Cheque - right to fair trial - grievance of the petitioner is that petitioner has been denied right of cross-examination without any default on his part - Violation of principles of natural justice - HELD THAT - The accused had put in appearance before learned trial Court for the first time on 20.11.2017. He was put to notice under Section 251 Cr.P.C. on 5.12.2017. At that stage, learned trial Court had not shown strict compliance to afore-mentioned direction and rather had not only fixed the case for recording of evidence of complainants but had recorded statement of one of the complainant's witness on 4.6.2018. The impugned order cannot be sustained as it has divested the accused of his right to cross-examine the prosecution witness. The reason assigned for closing the right of cross-examination also cannot be countenanced for the reason that the accused had not been afforded reasonable opportunity to file the application under Section 145(2) of the Act. The accused had availed opportunity to lead defence evidence and in order to prove his defence, the accused had moved an application under Section 45 of the Indian Evidence Act for orders of learned trial Court to send the questioned signatures of accused on document Ext.-C-7 relied upon by complainants, with his admitted signatures on the Vakalatnama filed in the Court - there is no hesitation to hold that the impugned order dated 12.7.2018 has not only taken away a valuable right of the accused but such order has caused serious prejudice to the right of defence of petitioner in proceedings held after passing the impugned order. The impugned order dated 12.7.2018, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan in Complaint Case No. 135/3 of 2013 is set aside. As a necessary consequence thereof, the subsequent proceedings and orders passed in Complaint Case No. 135/3 of 2013 are also set aside with a direction to the learned trial Court to afford reasonable opportunity to the accused to cross-examine the witness of complainant whose statement was recorded as preliminary evidence and thereafter to proceed further in the case. Petition disposed off.

Summary

Issues:
Denial of right to cross-examination without default, Compliance with legal provisions, Impact of Supreme Court judgment, Right to fair trial, Rejection of defense evidence.

Analysis:

1. The judgment involves two connected petitions arising from proceedings in a criminal case. The petitioner challenged an order denying the right to cross-examine without any default on his part. The impugned order was based on provisions of the Negotiable Instruments Act and a Supreme Court judgment.

2. The petitioner contended that the denial of the right to cross-examine was against criminal jurisprudence and harsh. The respondent supported the order citing legal provisions and the Supreme Court judgment.

3. The court noted the history of the case, including the complaint under Section 138 of the Negotiable Instruments Act. The accused was facing prosecution for dishonoring a cheque and failing to pay the complainants despite demand notice.

4. The court analyzed the proceedings before the trial court, highlighting the steps taken, summoning of the accused, and recording of preliminary evidence. The accused was remitted to judicial custody after pleading not guilty.

5. The court emphasized the importance of the right to cross-examine in criminal prosecutions and quoted relevant provisions of the Indian Evidence Act. It stated that denying this right renders the statement of a witness un-rebutted.

6. The court found that the accused was not present when the complainants chose to rely on the preliminary evidence, leading to the closure of the right to cross-examine. The court also discussed the directions issued by the Supreme Court regarding the accused's plea of defense.

7. The court held that the impugned order was unsustainable as it deprived the accused of the right to cross-examine. It noted that the accused was not given a reasonable opportunity to file the necessary application under the Act.

8. The court further discussed the rejection of defense evidence by the trial court, highlighting the prejudice caused to the accused's defense. It set aside the impugned order and directed the trial court to afford a reasonable opportunity for cross-examination.

9. In conclusion, the court set aside the impugned order and subsequent proceedings, emphasizing the importance of the accused's right to a fair trial. The second petition challenging another order was rendered infructuous due to the decision in the first petition.