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TMI Blog2023 (5) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... rding 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 up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sirmour District at Nahan in Case No. 135/3 of 2013. 2. The impugned order reads as under:- Exemption application on behalf of accused filed and allowed. At this stage, complainant has made a statement that he has already led preliminary evidence and same may be read as a whole in the main case file and does not want to lead further evidence. In view of this, the evidence of the complainant is closed. Similarly, accused also failed to file application 145 (2) NI Act. Therefore, his right to cross examine the witness is also struck off. Let file be put for statement of accused u/s 313 Cr.P.C. for 9.8.2018. 3. The grievance of the petitioner is that petitioner has been denied right of cross-examination without any default on his part. The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to analyse the merits of rival contentions raised on behalf of the parties, it is necessary to notice the manner in which the proceedings have taken place before learned trial Court in Complaint Case No. 79/3 of 2016/135/3 of 2013. 10. Record reveals that on 13.12.2013, the statement of one of complainants, Shri Amit Gupta, was recorded by learned trial Court as preliminary evidence on behalf of the complainants and thereafter on the statement of learned counsel for the complainants, the preliminary evidence of complainants was closed. On 2.1.2014, learned trial Court took cognizance of the offence under Section 138 of the Act and summoned the accused. Thereafter, the case was adjourned from time to time for service of accused and in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such right is waived by him. Section 3 of Indian evidence Act defines evidence as under: Evidence .-- Evidence means and includes--(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence. Section 138 of Indian Evidence Act provides for order of examination of a witness as under: 138. Order of examinations.--Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. 16. The complainants cannot draw any benefit from aforesaid directions, issued by Hon'ble Supreme Court in view of the peculiar facts of the case. Vide aforesaid direction a duty has been cast upon the Court to ask the accused to take notice under Section 251 Cr.P.C. on the date when the accused appears to furnish the bail bonds. The Court at that stage is obligated to ask the accused to enter his plea of defence and fix the case for defence evidence unless an application is made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt vide order dated 17.11.2018 and one of the ground for such rejection was the fact that claim of the complainant had not been rebutted by the accused by cross-examining him. It had also weighed with learned trial Court that since there was presumption attached to negotiable instrument, the burden in reverse was on the accused to prove that the cheque was not issued with outstanding legal liability. The order dated 17.11.2018 is under challenge before this Court in Cr.MMO No. 539 of 2018. 20. In the given facts and circumstances of the case, 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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