2024 (6) TMI 1388 - HC - Indian Laws

Dishonour of Cheque - Violation of principles of natural justice - opportunity of cross-examination was not afforded to the accused - applicability of section 145(2) of the NI Act for cross-examining the witnesses - HELD THAT - It is undisputed that the accused was not allowed to cross-examine the witnesses. The complainant appeared as (CW1) on 25.1.2022 and tendered his affidavit and documents in the evidence. There is nothing on record to show that an opportunity for cross-examination was afforded to the accused. Thus, the learned Appellate Court had rightly held that the opportunity of cross-examination was not afforded to the accused. In the United States of America, the right of confrontation of a witness is part of the fundamental right guaranteed by the Sixth Amendment. This is in recognition of the principle of natural justice incorporating the right of cross- examination given to a person. The Hon'ble Supreme Court also held in Noor Mohammed v. Khurram Pasha, 2022 (8) TMI 924 - SUPREME COURT that the right of cross-examination cannot be denied because the accused had failed to deposit the interim compensation and if such a right is denied, it will constitute an inherent infirmity. In the present case, the complainant relied upon an affidavit prepared by him out of the Court in the absence of the complainant. He tendered the affidavit without allowing the accused to cross-examine him. This amounted to the admission of the evidence recorded outside the Court not tested by the cross-examination reminding one of Sir Walter Raleigh's trial and the accusations at Star Chambers - the learned First Appellate Court had rightly held that the trial suffered from inherent infirmity and remanded the matter to the learned Trial Court to correct the infirmity. No fault can be found with the approach of the learned First Appellate Court. The present petition fails and the same is dismissed.

Summary

Issues Involved:
1. Denial of the right to cross-examine witnesses.
2. Applicability of Section 145(2) of the Negotiable Instruments Act, 1881.
3. Principles of natural justice and the right to cross-examination.
4. Validity of the Appellate Court's decision to remand the case.

Detailed Analysis:

1. Denial of the Right to Cross-Examine Witnesses:
The core issue in this case was whether the accused was denied the right to cross-examine the complainant's witnesses. The judgment highlights that the accused was not given an opportunity to cross-examine the complainant (CW1), who tendered his affidavit and documents on 25.1.2022. The High Court emphasized that cross-examination is a fundamental right of the accused in criminal proceedings, as it ensures the reliability and truthfulness of the evidence presented. The court cited multiple precedents, including Indian Bank Assn. v. Union of India, 2014:INSC:44 and Ashwani Kumar Sharma Vs. M/s. Himachal Fabrics, to assert that cross-examination is an integral part of the principles of natural justice.

2. Applicability of Section 145(2) of the Negotiable Instruments Act, 1881:
The complainant argued that the accused did not file an application under Section 145(2) of the NI Act, which was necessary for seeking the right to cross-examine witnesses. However, the High Court referred to the Supreme Court's judgment in Indian Bank Assn. v. Union of India, which mandates that the accused should be given an opportunity to cross-examine witnesses unless they waive this right. The court observed that the trial court had not followed the due process as laid down in the Indian Bank case, thereby denying the accused a fair trial.

3. Principles of Natural Justice and the Right to Cross-Examination:
The judgment extensively discussed the principles of natural justice, emphasizing that the right to cross-examine witnesses is a part of these principles. The court cited several Supreme Court judgments, including New India Assurance Co. Ltd. v. Nusli Neville Wadia and Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, to underline that cross-examination is essential for ensuring a fair trial. The court noted that even if the statute does not explicitly provide for cross-examination, it should be allowed as a matter of natural justice.

4. Validity of the Appellate Court's Decision to Remand the Case:
The complainant contested the Appellate Court's decision to remand the case for allowing the accused to cross-examine the witnesses. The High Court, however, upheld the Appellate Court's decision, stating that the trial court's proceedings suffered from an inherent infirmity due to the denial of the right to cross-examination. The court concluded that the Appellate Court was correct in remanding the matter to rectify this procedural lapse.

Conclusion:
The High Court dismissed the revision petition filed by the complainant, affirming the Appellate Court's decision to remand the case to the trial court. The court directed the parties to appear before the trial court on 11.7.2024, emphasizing that the observations made in the judgment were confined to the disposal of the petition and would not affect the merits of the case.