Mahendra Sharma @APPELLANT@Hash State of Rajasthan & Ors

It is unique case where the complainant has been harassed and made to suffer merely because he had filed a complaint under Section 138 of

Negotiable Instruments Act against the petitioner.

It is often said that accused take benefit of magnanimity of the courts and courts unnecessarily grant adjournments. It is also believed that the

complainant always shudder to approach the court because of the delay caused and sufferance inflicted upon him.

In the present case, the petitioner had issued a cheque amounting to Rs. 10 Lakhs in favour of the complainant. The said cheque on presentation had

bounced, resultantly on 16.7.2012 the complainant instituted a complaint. The case was fixed for 4.2.2015 for cross-examination of the complainant.

No crossexamination was conducted even though numerous opportunities were granted. It may be noted that on 15.10.2014 last opportunity was

granted to the accused to affect crossexamination with an undertaking that in case he fails to affect the cross-examination, same shall be deemed to

have been treated NIL. Later the cross-examination of the complainant was made NIL. The case was fixed for recording statement of the accused in

the year 2015. After the statement of the accused was recorded, numerous opportunities were availed to advance arguments. Twice the accused

jumped bail and deserted the court.

In the year 2018, when case was fixed for final arguments, suddenly an application was filed praying that an opportunity be granted to conduct cross-

examination upon the complainant.

The learned counsel for the petitioner has submitted that for fault on the part of the counsel in the trial court, the petitioner has been left defenceless.

It is submitted that if no opportunity is granted to the petitioner to affect crossexamination, the statement of the complainant shall be read in entirety

and no argument shall be available with the petitioner to prove his innocence.

This is a case where complainant has been harassed. The accused misused the magnanimity of the court. Complainant has been appearing on each

and every date, but on one pretext or the other, cross-examination was not carried. The accused simply wanted to delay the proceedings.

At this juncture, learned counsel for the petitioner has submitted that for the act of the counsel, petitioner cannot be made to suffer. It is submitted that

if examination-in-chief of the complainant is taken into consideration without crossexamination, the petitioner will be left defenceless and shall have no

remedy.

Considering the order which this court propose to pass, issuance of notice upon the complainant-respondent No.2 is dispensed with as issuance of

notice will further delay the proceedings and the petitioner will succeed in its game plan to delay the proceedings. Furthermore, the complainant will be

fastened with unnecessary cost and litigation expenses.

After dispensing with issuance of notice upon the complainant-respondent No.2, taking into account the fair play and balance of equities, the petitioner

is granted one opportunity to cross-examine the complainant subject to payment of cost of Rs.30,000/-. The cost shall be disbursed to the complainant

who has been made to suffer. It is ordered that upon deposit of cost by the petitioner within ten days from the date of receipt of certified copy of this

order, the trial court, as per its convenience and calendar, shall fix one date for cross-examination of the complainant. On that day, counsel for the

accused-petitioner shall conclude the cross-examination. However, if due to paucity of time cross-examination of the complainant is not concluded, the

trial court shall fix the next day as date for the same. However, in case the petitioner fails to deposit the cost, the court shall proceed with the matter

in accordance with the provisions of law.

In view of above, the present petition stands disposed of.