2018 (11) TMI 185 - HC - Indian Laws

Dishonor of cheque - Section 138 of the NI Act - Opportunity to cross-examine the witnesses - Held that - This Court finds that the Complainant/respondent herein had repeatedly introduced new witnesses. The petitioner was not even aware of these witnesses or their depositions; in advance; at the stage of prosecution evidence. Therefore, in the end of the process; and at the stage of defense evidence, if the petitioner has gathered that something relevant for the defence is yet to be put to the complainant, then it can not be said that such a prayer by the petitioner made to the Court under Section 311 Cr.P.C. is unjustified. Resultantly, it has to be held that; in the facts and circumstances of the present case, it was not legally sustainable or justified on the part of the Trial Court to dismiss the application moved by the petitioner, and thereby to deny him the opportunity to further cross-examine the complainant(CW- 1) and witness Bhupinder Singh(CW-2). Opportunity to crossexamine these witnesses - Held that - This Court finds that it is not entirely within the discretion and authority of the petitioner to cross-examine a particular witness. Controller of the process of evidence is the Trial Court. Opportunity is to be granted by the Court to the accused to cross-examine a witness through specific order. The records, produced before the Court, does not show that after examination of these additional witnesses the petitioner was ever granted any opportunity to cross-examine the complainant. Therefore, the testimony of Complainant; with reference, subsequently examined witness of the Complainant himself, has remained totally un-cross-examined and unconfronted to the Complainant. The petitioner is granted one effective opportunity to cross-examine the Complainant(CW-1) and Bhupinder Singh (CW-2) - petition allowed by way of remand.

Summary

Issues Involved:
1. Quashing of the Order dated 04.08.2018 by the Judicial Magistrate Ist Class/SAS Nagar (Mohali).
2. Application under Section 311 Cr.P.C. for recalling of the Complainant (CW-1) and additional witness Bhupinder Singh (CW-2) for further cross-examination.

Detailed Analysis:

1. Quashing of the Order dated 04.08.2018:
The petitioner sought to quash the order dated 04.08.2018, which was issued by the Judicial Magistrate Ist Class, SAS Nagar (Mohali). This order rejected the petitioner’s application under Section 311 Cr.P.C. to recall the Complainant (CW-1) and Bhupinder Singh (CW-2) for further cross-examination. The case originated from a complaint filed under Section 138 of the Negotiable Instruments Act. Initially, the complainant’s statement was recorded, and the petitioner cross-examined the complainant. Later, the complainant introduced Bhupinder Singh (CW-2) as an additional witness, who was cross-examined by the petitioner. The petitioner argued that new facts emerged from Bhupinder Singh’s testimony, necessitating further cross-examination of the complainant. The trial court denied this request, leading to the current petition.

2. Application under Section 311 Cr.P.C. for Recalling Witnesses:
The petitioner’s counsel argued that the new facts disclosed by Bhupinder Singh (CW-2) required further cross-examination of the complainant to ensure a fair trial. The petitioner’s counsel cited the Supreme Court’s judgment in Hoffman Andreas vs. Inspector of Customs, emphasizing that even a change of counsel could justify recalling a witness for cross-examination if it was necessary for a just decision. The respondent’s counsel countered that the petitioner had already cross-examined the witnesses and that merely changing counsel was insufficient grounds for further cross-examination. The respondent’s counsel also referenced the Supreme Court’s judgment in State (NCT of Delhi) vs. Shiv Kumar Yadav, which held that a change of counsel alone does not warrant recalling witnesses under Section 311 Cr.P.C.

Court’s Findings:
The court found that the trial court should have allowed the petitioner’s application. It noted that the complainant had introduced new witnesses through Section 311 Cr.P.C., and the petitioner had not been given an opportunity to cross-examine the complainant after these new witnesses were examined. The court emphasized that the petitioner had a legal right to cross-examine the complainant regarding the new facts introduced by Bhupinder Singh (CW-2). The court also rejected the respondent’s argument that the petitioner’s earlier cross-examination of the complainant precluded further cross-examination. It held that the petitioner was entitled to confront the complainant with the new facts disclosed by Bhupinder Singh (CW-2).

Conclusion:
The court set aside the impugned order dated 04.08.2018 and granted the petitioner one effective opportunity to cross-examine the complainant (CW-1) and Bhupinder Singh (CW-2). The court also instructed the trial court to complete the trial within one month after the cross-examination.