Ashok Duseja vs The State of Uttarakhand and another

Hon''ble Servesh Kumar Gupta, J.—Heard the learned counsel of Sri Ashok Duseja.

This petition has been filed with the prayer that the trial court be directed to give an opportunity to produce the evidence u/s 246 CrPC in the Criminal Complaint Case No. 9595 of 2009 titled as Ashok Duseja v. Shri Devendra Singh.

It appears that two complainants named Shri Jagdish Lal and Iqbal Wasu filed a criminal complaint way back in 1995 pertaining to Section 420 IPC against Shri Devender Singh. After recording the statements of both the complainants, the charge was levelled against Shri Devender Singh on 22.1.2010.

The facts of the case advert that although the cognizance was taken for the offence of Section 420 IPC, but basically it was the controversy of dishonouring a cheque, wherein the amount of Rs. 1,55,000/- was involved, which had to be paid by Shri Devender Singh to Shri Ashok Duseja. The trial court rendered a number of opportunities to the complainants to produce themselves in the witness box for being examined u/s 246 CrPC along with their witnesses, but one of the complainants Shri Jagdish Lal died meanwhile and second complainant Iqbal Wasu left to pursue his case and besides his failure to produce his witnesses for further cross-examination u/s 246 CrPC, the complainant even did not pray to the Court for calling his witnesses disclosing their names and addresses. The learned Magistrate, noticing the protracting attitude of the complainant, gave a last opportunity for producing his witnesses. On the date fixed, the complainant did not appear. He also failed to pay the costs, which was previously ordered by the Court to be paid to the accused. In those circumstances, the learned trial court closed the evidence of the complainant and fixed up the case for recording the statement of the accused u/s 313 CrPC. A revision was filed against the order of the learned Magistrate dated 16.3.2010. This revision was dismissed on merits after hearing the learned counsel of the revisionist.

Learned counsel of the petitioner has relied upon a precedent of Hon''ble Judge, Punjab & Haryana High Court in Swaran Kaur v. Gurdev Singh and others reported in 2004 (3) CCC 437 (P&H). In the said precedent, the scope and meaning of Section 246 CrPC has been discussed. It was held that after framing of the charge, the duty was of the Court to summon the PWs and to adopt the coercive methods in case they fail to appear despite service. That matter pertains to Sections 498-A, 409 and 506 IPC. In the present complaint, it appears that the complainant did not provide the list of the prosecution witnesses at the time of issuing process u/s 204 CrPC as envisaged u/s 204(2) CrPC, so the only witness in the matter was complainant Iqbal Wasu himself, who had to produce himself before the Court for cross-examination u/s 246 CrPC. It was onerous upon him to present himself in the Court for being cross-examined at the hands of the learned counsel of the accused, but he did not appear, so the lower court had no option, but to close his evidence. This way, this petition is devoid of merit and deserves dismissal.

However, the Court deems it apt to render one more opportunity to petitioner Shri Ashok Duseja, provided he deposits a costs of Rs. 8,000/- payable to accused Shri Devender Singh pre-hand in the Civil Account of Nazarat. If this amount is deposited by him, as directed above, and he shows the receipt thereof to the Court, then the order of the Magistrate closing his evidence shall be recalled to provide only one single opportunity to Shri Ashok Duseja for being cross-examined u/s 246 CrPC, otherwise the petition shall be deemed to be dismissed at the threshold.