Zeba Khan vs Santosh Sharma

The applicant has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 10/12/2018 whereby learned trial Court proceeded further and closed the rights of the petitioner to cross-examine the respondent.

The facts giving rise to this petition, in short, are that respondent-Santosh Sharma lodged a criminal complaint for the offence punishable under Section 138 of Negotiable Instruments Act against the applicant on 02/05/2016 and that complaint registered by the trial Court and issued notice to the applicant. The applicant appeared before the trial Court and the trial was proceeded. The respondent filed an affidavit under Section 145 of N.I. Act. The case was fixed for cross-examination on 10/07/2017, 16/08/2017, 25/10/2017, 20/11/2017, 12/12/2017, 19/01/2018 and 19/03/2018, on the date 20/07/2018 fixed for cross-examination, senior counsel of the applicant was not present, junior counsel prayed for time but learned trial Court did not provide opportunity for cross-examination of the respondent and on 20/07/2018 closed the right of the applicant to cross-examine the respondent.

Thereafter when learned trial Court closed the right of cross-examination vide order dated 20/07/2018, the applicant filed an application under Section 311 of Cr.P.C. praying therein to recall the respondent for cross-examination. However, learned trial Court vide order dated 10/12/2019 dismissed the said application and did not recall the respondent for cross-examination. Hence, the applicant has filed this petition under Section 482 of Cr.P.C. on the ground that the applicant has not been provided proper opportunity for defence. Cross-examination is necessary for discovery of the truth. The respondent has filed a complaint on the false ground, therefore, prays to set aside the impugned order and recall the respondent for cross-examination.

Having heard learned counsel for the parties and perused the documents filed along with this petition. The applicant with the clean hand has filed copy of order sheets and impugned order and also copy of complaint.

Perused. The respondent filed a complaint under Section 200 of the Code of Criminal Procedure for the offence punishable under Section 138 of N.I. Act. The applicant appeared in that complaint case before the trial Court. Particulars of the offences stated against the applicant and the trial Court proceeded for the complainant's evidence. The respondent submitted an affidavit stating examination-in-chief under Section 145 of N.I. Act. The applicant filed an application for cross-examination of the respondent and that prayer has been allowed and the case was listed on 07/03/2017 for cross-examination of the respondent, however, the applicant was not present and an application was filed on his behalf for condonation of absence with a prayer that on the next date of hearing the applicant would be kept present, but counsel for the applicant sought time for cross-examination. The case again listed on 18/04/2017, however, the applicant instead of cross-examining the complainant prayed for mediation. Learned trial Court sent the case for mediation. When the parties did not arrive at settlement, the case sent back to the trial Court and the trial Court listed the case for evidence on 10/07/2017.

The respondent was though present on 10/07/2017 but the applicant did not cross-examine the respondent and prayed for time. The case was posted for 26/07/2017 and on that date the applicant was not present. The case again posted for complainant's evidence on 25/10/2017, however, the applicant was not present on that date and prayed for time, therefore, the case posted for complainant's evidence on 20/11/2017. On this date again applicant remained absent and his counsel did not cross-examine the respondent and prayed for time, the case posted for 12/12/2017. On that date the respondent present in person before the Court, however, the Advocates abstained from the work, the case again adjourned for complainant's evidence on 19/01/2018. On 19/01/2018 and 19/03/2018 the applicant was not present before the Court and his counsel sought for time. On 10/05/2018 when respondent (complainant) was present but the applicant was not present, the Court warned the applicant either to cross-examine the respondent otherwise his opportunity shall be closed and posted the case for complainant evidence for 12/06/2018. On 12/06/2018 when the respondent was present, the applicant was also present, but, the applicant instead of cross-examining the respondent, at the last indulgence, prays for time, learned trial Court again provided time and posted the case for 20/07/2018. On this date the respondent was present for cross-examination, the applicant was also present but the applicant again sought time, however, the trial Court did not provide further time for cross-examination and closed the right of cross-examination and proceeded further for examination of accused (applicant).

Being aggrieved by that order, the applicant preferred a criminal revision before the 15th Additional Sessions Judge, Bhopal which was registered as Criminal Revision No.466/2018. Learned revisional Court after hearing both the parties dismissed the revision vide order dated 06/12/2018 observing that the applicant has been provided ample opportunities for cross-examination, but, he tried to avoid the cross-examination on one pretext or other. The applicant also submitted an application under Section 311 of the Code of Criminal Procedure on 15/11/2018 for recalling the complainant for cross-examination which was too dismissed by the trial Court vide order dated 10/12/2018.

After perusal of the whole documents and on the facts discussed as above, this Court is of the firm view that the applicant has been provided ample opportunities to cross-examine the respondents and the case was pending since 2016. If the respondent available before the trial Court, it is obligation of the applicant to cross-examine if he wish to cross-examine the respondent on the affidavit stating his examination-in-chief. When the applicant does not avail the opportunity after providing several times, the Court did not commit any irregularity or illegality in closing his right to cross-examine the respondent and proceeded the case further because it is reflected that applicant wants to linger on the case and not cooperated with the respondent as well as with the Court for disposal of the case as early as possible.

Hon'ble Apex Court in the case of M/s Meters and Instruments Private Limited and another V. Kanchan Mehta, reported in AIR 2017 SC 4594 clearly instructed all the Sub Ordinate Courts where the criminal complaint cases filed under Section 138 of the N.I. Act are pending, to conclude the case preferably within six months by day to day trial. Abstract of that directions are as under:

"20. In  every  complaint  under  Section 138 of the Act, it may be desirable that the complainant gives his bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the  Bank  where  the  accused  has  an account, such Bank, on being required, should  furnish  such  e-mail  ID  to  the payee of the cheque. In every summons, issued to the accused, it may be indicated  that  if  the  accused  deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost, by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant. If the accused  complies  with  such  summons and informs the Court and the complainant  by  e-mail,  the  Court  can ascertain  the  objection,  if  any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the accused's presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate. The accused, who wants to contest the case, must  be  required  to  disclose  specific defence for such contest. It is open to the Court to ask specific questions to the accused at that stage. In case the trial is to proceed, it will be open to the Court to explore the possibility of settlement.

It  will  also  be  open  to  the  Court  to consider the provisions of plea bargaining. Subject to this, the trial can be on day to day basis and endeavour must be to conclude it within six months. The guilty must be punished at the earliest as per law and the one who obeys the law need not be held up in proceedings for long unnecessarily."

(emphasis supplied)

On the basis of forgoing discussion and considering the directions issued by the Hon'ble Apex Court in the case of M/s Meters and Instruments Private Limited and another (supra), this Court finds that there is no need to recall the respondent for cross-examination. The applicant who is an accused in the complaint can very well take that defence in defence evidence because case is posted for defence evidence, hence, this Court does not find fit to invoke the inherent jurisdiction envisaged under Section 482 of the Cr.P.C.

Hence, this petition deserves to be and is hereby dismissed.

Before parting this, as the criminal complaint case is pending since 2016 Court of JMFC is directed to conclude the complaint case as early as possible by obeying the directions issued by the Apex Court in the case of M/s Meters and Instruments Private Limited and another (supra).

If any interim application is pending, the same stands dismissed. No order as to cost.