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2012 DIGILAW 1715 (PNJ)

Harish Piplani v. Ashwani Chadha

2012-12-03

VIJENDER SINGH MALIK

body2012
Vijender Singh Malik, J.:— Challenge by way of this petition, brought by Harish Piplani, the petitioner, is to the judgment dated 31.03.2012 (Annexure P-4) passed by learned Sessions Judge, Ambala. In a complaint filed by Ashwani Chadha, the respondent against the petitioner for an offence punishable under section 138 of the Negotiable Instruments Act, 1881, Ashwani Chadha appeared as a witness. He was to be cross-examined by the counsel for the accused. Various opportunities were given to the side of the accused for cross-examination of the complainant. On 15.02.2012 the complainant was again present for his crossexamination. In place of conducting cross-examination of the complainant, the defence filed an application for directing the complainant to examine all his witnesses on one day. The first date when Ashwani Chadha, the complainant was examined was 17.09.2011. The request was made by the defence counsel for deferring the cross-examination and, therefore, the matter was deferred to 09.11.2011. On 09.11.2011 the defence again made a request for deferring the cross-examination and consequently the matter was deferred to 24.11.2011. On 24.11.2011 the court was on leave and so the matter was adjourned to 18.01.2012. On 18.01.2012 again the complainant was present for his cross-examination but the defence again made a request and on his request the matter for cross-examination of the complainant was adjourned to 15.02.2012. On 15.02.2012 also the defence was not ready to cross-examine the complainant and had filed the application for directing the complainant to examine all his witnesses on one day. There was no indication from the complainant of his intention to examine any other witness. Taking the application to be a device to further delay the case, the same was dismissed. Apart from dismissing the application, further opportunity for cross-examination of the complainant was also denied. Aggrieved by the aforesaid order, the accused went in revision against the same before learned Sessions Judge, Ambala, who dismissed the same vide judgment dated 31.03.2012. I have heard Mr. Arvinder Arora, learned counsel for the petitioner and Mr Raghujeet Singh Madan,learned counsel for the respondent and have gone through the record. Aggrieved by the aforesaid order, the accused went in revision against the same before learned Sessions Judge, Ambala, who dismissed the same vide judgment dated 31.03.2012. I have heard Mr. Arvinder Arora, learned counsel for the petitioner and Mr Raghujeet Singh Madan,learned counsel for the respondent and have gone through the record. Learned counsel for the petitioner has submitted that it was the right of the petitioner to insist upon all the evidence of the complainant to be recorded on one day because he did not want to disclose his defence in examination of one witness, so that any dent created by his cross-examination in the evidence of the complainant, might not be covered by the subsequent witnesses. He has further submitted that though various opportunities had been sought by the accused for cross-examination of the complainant and there was no indication from the side of the complainant of any other witness to be examined in the case, yet it could only give reason to the court below to dismiss his application. According to him, the judgment was announced at 4. 00 pm and at that time complainant was not put for crossexamination and, therefore, declining of the opportunity to the accused for cross-examination of the complainant is not justified. He has, therefore, submitted that in the interest of justice, the complainant is required to be made available to the defence for his cross-examination. Learned counsel for the respondent, on the other hand, has submitted that the delay on the part of the defence in crossexamining the complainant was intentional and deliberate. According to him, two purposes were being served in delaying the cross-examination of the complainant. According to him, the first was that the matter was being delayed and the delay was in the interest of the accused, who was to pay the amount of Rs. 6,00,000/- of the complainant. According to him, the second reason for delaying the cross-examination of the complainant was to harass him, who was coming for his cross-examination on every date and was going back uncross-examined. According to him, there was no justification with the accused for seeking adjournment after adjournment in the matter and finally making the application in hand. It is true that on 17.09.2011 the complainant should have been cross-examined. However, seeking one adjournment for cross-examination could be justified for some reasons, subsequent requests for adjournment were not at all justified. According to him, there was no justification with the accused for seeking adjournment after adjournment in the matter and finally making the application in hand. It is true that on 17.09.2011 the complainant should have been cross-examined. However, seeking one adjournment for cross-examination could be justified for some reasons, subsequent requests for adjournment were not at all justified. When the accused thought that no further adjournment would be given in this manner, he moved the application and, therefore, the conduct of his defence by the accused was not proper and he was liable to be burdened with heavy costs. However, interest of justice seems to have not been served in foreclosing the right of the defence to cross-examine the complainant. At least, one opportunity should have been granted to the accused to cross-examine the complainant with the warning that no further opportunity will be given . Even costs could be imposed on the accused. So the order declining the opportunity to the accused to cross-examine the complainant does not seem to be justified. In these circumstances, while upholding the impugned judgment so far it concerns the dismissal of the application of the accused directing the complainant to examine his entire evidence of one day, the petition qua the prayer of cross-examination of the complainant is allowed. However in the given circumstances, the petitioner is burdened with Rs. 5000/- as costs, payable to the respondent. For this purpose, one opportunity shall be given to the petitioner-accused. I am told that the case is fixed for 21.12.2012 and that opportunity may be exercised on that date. If somehow or the other a copy of this order does not reach the trial court on or before the said date, then one date may be fixed for the purpose, aforesaid.