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Jharkhand High Court · body

2012 DIGILAW 1753 (JHR)

Samir Kumar Ghosh v. State Bank of India

2012-12-19

N.N.TIWARI

body2012
ORDER The petitioner is aggrieved by the order dated September, 2012, rejecting his application for allowing him to cross-examine the witness-Sujash Kumar Das, an Officer of the Bank, passed in P.T. Case No.5 of 2004 by Debts Recovery Tribunal, Ranchi. 2. It has been stated that the said witness has filed affidavit in support of the plaintiff Bank, giving false and misleading statements. In order to test his veracity, it was necessary to cross-examine the said witness. For that purpose, the defendant filed application before the learned Debt Recovery Tribunal. By the impugned order, the said application has been rejected on the ground that cross-examination of the said witness is not required for the purpose he is sought to be cross-examined. 3. Learned counsel for the petitioner submitted that main purpose of cross-examination of the said witness is to test his veracity and elicit truth from him. 4. Learned Tribunal has prejudged the issue and has given prima facie finding on several facts. In the impugned order, he has observed that cross-examination of the said witness is not required for the purpose the witness is sought to be cross-examined. The said observation is wholly arbitrary and unjust. It has been submitted that the petitioner requires only one day for cross-examining the witness and he has no intention to delay the proceeding. By refusal of his payer, the petitioner has been put to serious prejudice. The order amounts to denial of justice to the petitioner. 5. Learned counsel appearing on behalf of the Respondent-Bank submitted that the impugned order is well reasoned and passed after a thorough discussion. Learned Tribunal has applied its mind and has found that cross-examination of the said witness is not required. He further submitted that the impugned order is appealable and the petitioner has remedy to go in appeal. 6. I have heard learned counsel for the parties. The origin of the matter is sometime in 1988. The present case is of the year 2004. The simple prayer of the petitioner was for allowing him to cross-examine the witness, whose affidavit is on the record and is likely to be used against him as an evidence in the case. 7. Rule 12(6) of the Debts Recovery Tribunal (Procedure) Rules, 1993 prescribes for filing affidavit in support of the case and for allowing cross-examination of the witness. 8. 7. Rule 12(6) of the Debts Recovery Tribunal (Procedure) Rules, 1993 prescribes for filing affidavit in support of the case and for allowing cross-examination of the witness. 8. The petitioner is desirous of cross-examining the witness whose affidavit has been filed in support of the plaintiff's case. The Tribunal has been given power to pass order for producing the witness for cross-examination. There is a clear provision for brushing aside the affidavit and not taking the same into evidence, if the witness after order of the Tribunal is not produced for cross-examination. Rule 12 of the said Rules runs as follows: “12. Filing of reply and other documents by the defendant (1) The defendant may file two complete sets containing the reply to the application alongwith documents in a paper-book form with the registry within one month of the service of the notice of the filing of the application on him. (2) The defendant shall also endorse one copy of the reply alongwith documents as mentioned in subrule (1) to the applicant. (3) The Tribunal may, in its discretion on application by the defendant, allow the filing of reply referred to in subrule (1), after the expiry of the period referred to therein. (4) If the defendant fails to file the reply under subrule (1) or on the date fixed for hearing of the application, the Tribunal may proceed forthwith to pass an order on the application as it thinks fit. (5) Where a defendant makes an admission of the full or part of the amount of debt due to a bank or financial institution, the Tribunal shall order such defendant to pay the amount, to the extent of the admission, by the applicant within a period of one month from the date of such order failing which the Tribunal may issue a certificate in accordance with Sec.19 of the Act to the extent of amount of debt due admitted by the defendant. (6) The Tribunal may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Tribunal thinks reasonable: Provided that after filing of the affidavits by the respective parties where it appears to the Tribunal that either the applicant or the defendant desires the production of a witness for cross examination and that such witness can be produced and it is necessary to do so, the Tribunal shall for sufficient reasons to be recorded, order the witness to be present for cross examination, and in the event of the witness not appearing for cross examination, then, the affidavit shall not be taken into evidence and further that no oral evidence other than given in this proviso will be permitted. (7) If the defendant denies his liability to pay the claim made by the applicant, the Tribunal may act upon the affidavit of the applicant who is acquainted with the facts of the case or who has on verification of the record sworn the affidavit in respect of the contents of application and the documents as evidence. (8) Provisions contained in Sec.4 of the Bankers' Books Evidence Act, 1891 (18 of 1891) shall apply to a certified copy of an entry in a banker's book furnished along with the application filed under subsection (1) of Sec.19 by the applicant.” 9. On reading of Subrule (6) of Rule 12 of the said Rules as a whole, it appears that if any fact is proved by an affidavit and any party is desirous of cross-examining the witness who has sworn the affidavit, such order can be passed by the Tribunal. 10. The Legislature in their prudence have used the word “Shall” in Subrule (6) of Rule 12, that gives a mandate for considering the application filed for the purpose of cross examination and passing the order for producing the witness for cross-examination after recording reasons therefor. The consequence prescribed for non-production of witness for cross examination also demonstrates he importance of the right of cross-examination of the witness, whose testimony is to be tested by the party against whom the evidence is likely to be used. The consequence prescribed for non-production of witness for cross examination also demonstrates he importance of the right of cross-examination of the witness, whose testimony is to be tested by the party against whom the evidence is likely to be used. It has been clearly provided that in the event of the witness not appearing for cross-examination, the affidavit shall not be taken into evidence and no further oral evidence shall be permitted. 11. The importance of the provision should be also viewed in the light of equity and principle of natural justice which are encashed in the chapter of Fundamental Rights in our Constitution. 12. Learned Tribunal has refused the petitioner's prayer for seeking cross-examination of the witness produced by the plaintiff-Bank on extraneous ground, whereas the main purpose of cross-examination of the witness is to test his veracity and elicit truth. 13. For the reasons aforesaid, the order dated 4th September, 2012 passed in P.T. Case No.05 of 2004 by learned Debt Recovery Tribunal, Ranchi is not sustainable and is, accordingly, set aside. The petitioner's prayer for allowing him to cross-examine the said witness Sujash Kumar Das, is allowed. 14. For the said purpose, learned Tribunal shall fix a date directing the plaintiff Bank to produce the said witness for cross-examination on that date. On production of the said witness, defendant No.4petitioner or any defendant against whom his affidavit is likely to be used and is desirous of cross-examining the said witness shall be allowed to cross-examine the witness. 15. It is made clear that no adjournment shall be granted on any ground at the instance of the defendants for that purpose. Ordered accordingly.