2022 (8) TMI 1213 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - trial for an offence under Section 138 of the Negotiable Instruments Act - seeking cross examination of the complainant officer of the bank - service of proper notice on the accused or not - complaint had been filed by a lawful attorney of the bank or not - HELD THAT - In the present case a perusal of the application and reply filed thereon would clearly establish that the moving of the present application is a delaying tactic on the part of the petitioner/accused. The complaint under Section 138 of the Negotiable Instrument Act is pending since 2016 and has not been decided uptill now. As per the reply, virtually every interim order has been challenged by the petitioner-accused. A number of applications have been filed during the course of proceedings, all of which have delayed the conclusion of trial. In the present application the recall, re-cross examination of the complainant is sought by the petitioner-accused on account of change of counsel. Firstly, the change of counsel is no ground for recall of witness - Even otherwise as per the cross examination of the witnesses concerned, with regard to the service of legal notice it may be mentioned here that as per Annexure P-5 (the cross examination of CW-1 Rajinder Parshad) it is apparent that the question regarding service of notice had been put by the earlier counsel to the witness. Whether the complaint not having been filed by a lawful attorney? - HELD THAT - The complaint has been filed by a Bank which is a juristic person being a company. A bank/company can deputy any officer of his choice to represent the bank with permission of the Court. The attorney holder Rajinder Parshad was allowed by the court to represent the bank vide order dated 26.07.2017. Once the court had already allowed the application for substitution of the attorney of Rajinder Parshad in place of the previous attorney then the question of complaint not having been filed by a lawful attorney and that question being needed to be put to the witness in re-cross examination does not arise. Apparently the application seems to have been filed with a view to further delay the proceedings. Petition dismissed.

Summary

Issues Involved:
1. Quashing of Order dated 06.04.2022 under Section 482 Cr.P.C.
2. Application under Section 311 Cr.P.C. for further cross-examination.
3. Service of proper notice on the accused.
4. Complaint filed by a lawful attorney of the bank.

Issue-wise Detailed Analysis:

1. Quashing of Order dated 06.04.2022 under Section 482 Cr.P.C.:
The petitioner sought to quash the order dated 06.04.2022 passed by the learned JMIC, Amritsar, which dismissed the application under Section 311 Cr.P.C. The petitioner argued that the application was necessary due to a change of counsel and to address two vital aspects: whether proper notice had been served on the accused and whether the complaint was filed by a lawful attorney of the bank.

2. Application under Section 311 Cr.P.C. for further cross-examination:
The petitioner moved an application under Section 311 Cr.P.C. for further cross-examination of CW-1 Rajinder Parshad, the lawful attorney of the bank. The petitioner contended that due to a change of counsel, it was realized that certain material questions had not been asked. The court examined the relevant provisions of Section 311 Cr.P.C., which allows the court to summon, examine, recall, and re-examine any person if their evidence appears essential to the just decision of the case.

3. Service of proper notice on the accused:
The petitioner argued that it was necessary to further cross-examine CW-1 on whether proper notice had been served on the accused. However, the court noted that the question regarding the service of notice had already been addressed during the earlier cross-examination by the previous counsel, as evidenced by Annexure P-5.

4. Complaint filed by a lawful attorney of the bank:
The petitioner questioned whether the complaint was filed by a lawful attorney of the bank. The court clarified that the complaint was initially filed by Bhupinder Singh, Manager Legal, and later, Rajinder Parshad, Deputy Manager, was substituted with the court's permission. The court held that a bank, being a juristic person, can deputize any officer to represent it with the court's permission. Since the substitution of the attorney was allowed by the court on 26.07.2017, the question of the complaint not being filed by a lawful attorney did not arise.

Conclusion:
The court dismissed the petition, finding no merit in the arguments presented by the petitioner. It was concluded that the application under Section 311 Cr.P.C. was a delaying tactic, as the complaint under Section 138 of the Negotiable Instruments Act had been pending since 2016. The court emphasized that the change of counsel was not a valid ground for recalling a witness and that the issues raised had already been addressed during the trial. The petition was dismissed to prevent further delay in the proceedings.