Judgment : This petition under Sec. 482 of Criminal Procedure Code is to quash the proceedings pending trial in C.C.No. 4989 of 1984 on the file of the XI Metropolitan Magistrate, Saidapet, Madras-15. 2. The second accused is the petitioner herein. One K. Srinivasan, a Sri Lanka refugee gave a complaint against first accused A.T. Shanmugham and second accused A.D. Almeida for alleged offences under Sec. 420 read with 34, I.P.C. It was alleged in the complaint that A.1 A.T. Shanmugham and A-2 A.D. Almeida paid a sum of Rs. 1,25,619.20 from the funds provided exclusively by the complainant and cleared 25 tonnes out of 100 tonnes of imported Green Moong. On 8.3.1984, A.T. Shanmugham and A.D. Almeida sold the consignment through M/ S.Madras Mercantile No. 20, Strotten Muthiah Mudali Street, Madras and A.T. Shanmugham and A.D.Almeida collected the consideration through cheque for Rs. 1,25,305.30 on 7th May, 1984. After collecting the cheque A. Shanmugham and A.D.Almeida instead of depositing it in account of the complainant in the Indian Bank, Harbour Branch, Madras, cheated the complainant by opening another account in State Bank of Hyderabad,‘Mylapore, Madras 600004. On 8th May, 1984 in their own joint name and withdraw the money and misappropriated the entire amount with the criminal intention to cheat the complainant. The complaint was investigated by Central Crime Branch Police and charge sheet was filed before the XI Metropolitan Magistrate, Saidapet, Madras, for the alleged offences under Secs. 425 and 420 read with 34, I.P.C. The trial before the XI Metropolitan Magistrate started. P.W. 1 was examined and he was partly cross-examined by counsel for first accused. On 6.5.1986, the second accused filed an application for summoning certain documents, such as ledger, pass book, audit statement and bills of lading relating to Sri Venkateswara General Agencies in possession of first accused for the purpose of effectively cross-examining P.W. 1. The said petition was heard by the learned XI Metropolitan Magistrate. The learned XI Metropolitan Magistrate dismissed the petition on 7.11.1986 on the grounds that second accused was a partner of Sri Venkateswara General Agencies and as the said documents called for related to their own partnership firm, the accused themselves can produce the same. It was not necessary to mark them through P.W. 1. Subsequently, the trial was adjourned for several days from 27.11.1986 for cross-examination of P.W. 1. However P.W. 1 was not present for cross-examination. It was not necessary to mark them through P.W. 1. Subsequently, the trial was adjourned for several days from 27.11.1986 for cross-examination of P.W. 1. However P.W. 1 was not present for cross-examination. On 21.7.1987, sub-poena was issued calling P.W. 1 to be present on 21.8.1987. Again on 21.8.1987, P.W. 1 was not present. Once again, sub-poena was issued to P.W. 1. The case was posted on 22.9.1987. Even on 22.9.1987, P.W. 1 was not present. Therefore on 29.10.1987, the learned Magistrate issued non-bailable warrant for production of P.W. 1. In spite of issue of non-bailable warrant, P.W. 1 was not present on the next day for trial i.e. on 2.12.1987. The learned Magistrate, therefore, closed the evidence of P.W. 1 and directed issue of subpoena to other witnesses and the case was adjourned for several days. P.Ws. 2 to 7 were not produced in spite of the issue of subpoena. Therefore, on 25.10.1988, the learned Magistrate issued final notice to P.Ws. and sub-poena was issued and posted the matter on 8.12.1988. In spite of final notice for P.Ws. 2 to 8 to be present, the witnesses were not present and therefore, the prosecution closed their evidence. The matter was adjourned to 31.1.1989. 3. It is submitted by Mr.G. Gopinath, learned counsel for the petitioner that the second accused was not given an opportunity to cross-examine P.W. 1 and as such, no reliance can be placed on the evidence of Chief-examination of P.W. 1 to prove the case against second accused. It is further submitted that in spite of several efforts made by the prosecution including the issue of non-bailable warrant for production of P.W. 1, he was not produced before the court for cross-examination by the second accused and the whereabouts of P.W. 1 are not known. Therefore, no purpose will be served by prolonging the trial proceedings and the proceedings as far as the second accused is concerned ought to be quashed by this Court. In this connection, the learned counsel referred to Sec. 138 of the Indian Evidence Act, 1872. The learned counsel submitted that no evidence affecting a party is admissible against that party unless that party has been given an opportunity to cross-examine the witness and the said common law principle is implied in Sec. 138 of the Evidence Act. In this connection, the learned counsel referred to Sec. 138 of the Indian Evidence Act, 1872. The learned counsel submitted that no evidence affecting a party is admissible against that party unless that party has been given an opportunity to cross-examine the witness and the said common law principle is implied in Sec. 138 of the Evidence Act. In support of the said contention, learned counsel cited the ruling in Baliram Tikaram Marathe and others v. Emperor, A.I.R. 1945 Nag. 1. 4. On the authorities of the above ruling, the learned counsel for the petitioner submitted that no reliance can be placed upon the evidence on P.W. 1 in his chief-examination as no opportunity was given to the second accused to test the veracity of the witness by cross-examination. Therefore, the criminal proceedings as far as second accused is concerned ought to be quashed by this Court. On the other hand, the learned Government Advocate (Criminal Side), Mr.V. Raja submitted that there is no delay on the part of the prosecution and adequate opportunity had been given to both accused 1 and 2 to cross-examine P.W. 1. However, both accused 1 and 2 deliberately postponed their cross examination in order to delay the trial of the case and in particular he pointed out that on 6.5.1986, P.W. 1 was present for cross examination. However, on that day second accused filed an application for summoning of certain records and the learned Magistrate after hearing the parties dismissed the petition for summoning of the records such as register, pass-book, audit statement and bills of lading as the records were that of the partnership firm of Sri Venkateswara Agencies of which accused 1 and 2 were the partners and the records were with them. Later on, due to reasons beyond the control of the prosecution, they were not able to examine P.W. 1 and therefore on the evidence recorded the trial court may be allowed to pass the orders. 5. There is force in the contention of Mr.G. Gopinath, learned counsel for petitioner to the effect that no reliance can be placed on the evidence of chief-examination of P.W. 1 to prove the case of the second accused which is not subject to cross-examination by the second accused. 5. There is force in the contention of Mr.G. Gopinath, learned counsel for petitioner to the effect that no reliance can be placed on the evidence of chief-examination of P.W. 1 to prove the case of the second accused which is not subject to cross-examination by the second accused. The rule of common law is that no evidence shall be admitted which is not subject to cross-examination, and the adverse party has a right to cross-examine the witnesses produced by the prosecution to prove the case against the accused. 6. John Henry Wigmore in his, A Treatise on the Anglo American System of Evidence in Trials at Common Law. (Vol.V, Sec. 1367) referring to the importance of cross-examination of witnesses, has stated as follows: "The praise of cross-examination and its efficacy as a fundamental test of truth have often been the subject of comment and exposition by our judges and jurists. ..... For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross- examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience. ..... The mere speaking under oath is not sufficient; the essential condition is that the person against whom the sworn statement is offered should have had an opportunity to cross-examine the deponent. This is universally conceded as a common-law principle. ..... The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross - examine if desired. The reason is that, wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that the testimony could not or need not be disputed at all or be shaken by cross-examination. In having the opportunity and still declining, he has had all the benefit that could be expected from the cross-examination of that witness. In having the opportunity and still declining, he has had all the benefit that could be expected from the cross-examination of that witness. This doctrine is perfectly settled." In Phipson’s Manual of the Law of Evidence (10th Edition) learned author states as follows: "Cross-examination is a powerful and valuable weapon for the purposes of setting the veracity of a witness and the accuracy and completeness of his story." Sir John Woodroffe & Syed Amir Ali in "Law of Evidence under caption, Sec. 138 of the Evidence Act, have quoted some of the passage" from Wigmore as follows: "The most distinguished modern authority on the Law of Evidence states in an eloquent passage: The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony unless it has been proved and sublimated by that test, has found increasing strength in lengthening experience. Cross-examination is universally acknowledged to be a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. ..... The examination of witnesses in court is a practical application of the socratic method of question and answer for arriving at a formal statement of truth. Cross-examination is intensive questioning sometimes with suggestions of the expected answer. Whether cross-examination is an art or a science, and there are protagonists for either view, it is an indubitable fact that it is one of those skills a trial lawyer cannot do without, for omission by a party to cross-examine a witness called by the opposite party amounts to an acceptance of the evidence of that witness." In this connection, a reference may be made to Sec. 138 of the Indian Evidence Act, 1872. Sec. 138 of the Indian Evidence Act reads as follows: "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 examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. 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 examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination: The re-examination shall be directed to the explanation of matters referred to in cross examination; and, if new matter is, by permission of the court, introduced in reexamination, the adverse party may further cross-examine upon that matter." The commentary under Sec. 138 of the Indian Evidence Act by Sarkar (Vol.2, 14th Edition), page 1998, the learned author states as follows: "The rule of the common law is that no evidence shall be admitted but what is or might be under the examination of both parties. But if the adverse party has had liberty to cross-examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-examined. Here then the question is whether the defendant had an opportunity of cross-examining" (per Ellenborough LCJ on Cazenove v. Vaughan, 1 M & S 6). The same rule is stated in Hals 3rd Ed, Vol.15, para 800: No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. It is certainly implied by Sec. 138 that a party must have had an opportunity to cross-examine and it does not mean that merely a right to cross-examine a witness without an opportunity being offered for cross-examination is sufficient compliance with the requirements of Law (Moti Singh v. Dhanukdhari, 73 I.C. 339: 24 Crl.L.J. 595). The doctrine requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination but merely an opportunity to exercise the right to cross-examine if desired. The reason is that, wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that the testimony could not or need not be disputed at all or be shaken by cross-examination. This doctrine is perfectly settled. The reason is that, wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that the testimony could not or need not be disputed at all or be shaken by cross-examination. This doctrine is perfectly settled. By the present doctrine testimony never actually tested at all, in consequence of the carelessness, fraud, or incompetence of counsel, or of privity in interest is admitted, if merely the opportunity so to test it had existed." 7. In Baliram Tikaram Marathe and others v. Emperor, A.I.R. 1945 Nag. 1, Nagpur High Court has observed as follows: "No evidence recorded by the Court, unless it satisfies the requirement of Sec. 138, Evidence Act, can become admissible and proper for consideration. It would indeed be bold to say that the evidence of a witnesses is legally admissible against a party even though he at the time it was given had not the full opportunity to cross-examine him: See Sadashiv Singh v. Emperor, 41 Cal. 299 and Peddabba Reddi v. Varada Reddi, A.I.R. 1929 Mad. 236." 8. In Maganlal Radhakrishnan v. Emperor, A.I.R. 1946 Nag. 173 at 180, wherein the Nagpur High Court has observed as follows: "....that cross-examination is as essential as examination-in-chief for eliciting from a witness material which is to constitute evidence. In Gorachand Sircar v. Ram Narain, 9 W.R. 587 at 588, it was observed: "Now it is certainly the right of every litigant, unless he waives it, to have the opportunity of cross-examining witnesses whose testimony is to be used against him.... It follows that evidence given when the party never had the opportunity either to examine or to cross-examine, a the case may be, or to rebut by fresh evidence, is not legally admissible as evidence for or against him unless he consents that it should be so used." In Moti Singh v. Dhanukdhari Singh, 24 Crl.L.J. 595 at 597, it was observed: "Now it is an elementary principle of law that an examination-in-chief of a witness, without an opportunity being offered to the opposite party to cross-examine is not legally acceptable. Therefore, the evidence of the witness in the present case was not such as upon which the Magistrate could Act." The rule in England is in no way (different) as well appear from Sec. 831 at page 756 of Vol. Therefore, the evidence of the witness in the present case was not such as upon which the Magistrate could Act." The rule in England is in no way (different) as well appear from Sec. 831 at page 756 of Vol. XIII of Halsbury’s Laws of England (Hailsham Edition). There it is said. "Any party is entitled to cross-examine any other party or his witnesses in the same litigation, and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination." This aspect of the importance of cross examination comes into bold relief in Sec. 33, Evidence Act. In Dal Bahadur v. Bijai Bahadur, A.I.R. 1930 P.C. 79 at 81, their Lordships of the Judicial Committee of the Privy Council rejected was not admissible a previous depositions of a witness on the ground that when the witness had been examined, the party sought to be affected by his previous deposition had not the opportunity or right to cross-examine him." 9. It is clear that Sec. 138 of the Evidence Act impliedly lays down that the statement of a witness would be read as evidence against a party only if it was tested on the anvil of cross-examination or opportunity was afforded for the purpose. The right of cross-examination could not be curtailed or circumscribed on one pretext or the other or in one way or the other, as shutting up of cross-examination would necessarily result in injustice to the cause and to the party against whom the statement is intended to be used. It is therefore, a right of every litigant to cross examine the witnesses, unless he gives up the same. This principle has been reiterated in Baliram Tikaram Marathe and others v. Emperor, A.I.R. 1945 Nag. 1, which is as follows: "No evidence recorded by the court, unless it satisfies the requirement of Sec. 138, Evidence Act, can become admissible and proper for consideration. It would indeed by bold to say that the evidence of a witness is legally admissible against a party even though he at the time it was given had not the full opportunity to cross-examine him." The same ruling was followed by the same Court in Maganlal Radhakrishnan v. Emperor, A.I.R. 1946 Nag. 173. 10. It would indeed by bold to say that the evidence of a witness is legally admissible against a party even though he at the time it was given had not the full opportunity to cross-examine him." The same ruling was followed by the same Court in Maganlal Radhakrishnan v. Emperor, A.I.R. 1946 Nag. 173. 10. In view of the above, I am of the considered opinion that the evidence in the chief-examination of a witness which is not subject to the test of cross-examination should not be used against the adverse party unless the adverse party waives the opportunity of cross examining the witness. The evidence given in chief examination to which the adverse party never had the opportunity to cross-examine the witness is not legally admissible as evidence for or against the adverse party and the said rule of common law is implied in Sec. 138 of the Indian Evidence Act. 1872. 11. In the instant case it is admitted by both sides that P.W. 1 was examined in chief and he was cross-examined partly by first accused. On 6.5.1986, second accused filed an application for summoning certain documents for alleged purpose of effectively cross examining P.W. 1. The same was dismissed by the learned Magistrate after hearing the parties on the ground that the documents called for such as register, pass-book, audit statement and bills of lading were really the documents belonging to the partnership firm of Sri Venkateswara Agencies of which accused 1 and 2 were partners. There was no question of marking those documents through P.W. 1. However, it is admitted fact that subsequent to 6.5.1986 the case was adjourned by the learned Magistrate for several days and sub-poenas were issued to P.W. 1 to be present for cross-examination and ultimately on 29.10.1987 the non-bailable warrant was issued for production of P.W. 1 for cross-examination. However, as P.W. 1 was not produced and ultimately as the prosecution failed to produce other witnesses in spite of several adjournments, the prosecution case was closed on 8.12.1988. At this stage, the petitioner second accused filed the petition to quash the criminal proceedings. From a reading of Sec. 138 of Evidence Act, 1872, as extracted above, it is clear that once a witness is examined in chief the adverse part should be given an opportunity cross examine the witness. 12. At this stage, the petitioner second accused filed the petition to quash the criminal proceedings. From a reading of Sec. 138 of Evidence Act, 1872, as extracted above, it is clear that once a witness is examined in chief the adverse part should be given an opportunity cross examine the witness. 12. In the instant case, it is evident that in spite of several efforts made by the prosecution including issue of non-bailable warrant, the prosecution was not in a position to trace P.W. 1 to present before the court for the purpose of cross-examination by second accused. Therefore, no opportunity was given to the petitioner/second accused to cross-examine P.W. 1 and as such, the evidence of P.W. 1 recorded in his examination-in-chief, shall not be admitted and used against the petitioner second accused. In view of the above, no useful purpose will be served by prolonging the proceedings against the petitioner/second accused herein. I am unable to accept the contention of the learned Government Advocate (Criminal Side) that opportunity was given to the petitioner and that he did not utilise the opportunity to cross-examine P.W. 1 on the peculiar facts and circumstances of the case. In view of the above, the proceedings against the petitioner/second accused Almedia now pending in C.C.No.4989 of 1984 on the file of the XI Metropolitan Magistrate, Saidapet, Madras, is hereby quashed. However, it is open to the learned XI Metropolitan Magistrate, Saidapet, Madras to proceed along with the case as far as first accused A.T. Shanmugham is concerned and dispose of the case on merits, in accordance with law. 13. With the above observations, Crl.M.P. No. 2401 of 1989 is disposed of.