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2014 DIGILAW 533 (RAJ)

Ashok Bansal v. Ghanshyam Prasad Poddar

2014-02-21

KANWALJIT SINGH AHLUWALIA

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JUDGMENT 1. - Instant petition under Section 482 Cr.P.C. has been preferred by the petitioner for setting aside the order dated 24.10.2013 passed by the Additional Chief Judicial Magistrate No.9, Jaipur Metropolitan, Jaipur in Criminal Complaint No.1422/2008, whereby the learned Magistrate had rejected the application filed by the petitioner under Section 311 Cr.P.C., along with the order dated 23.01.2014 passed by the Additional District & Sessions Judge No.11, Jaipur Metropolitan, Jaipur in revision, whereby the learned Judge had affirmed the order of the trial Court. 2. Succinctly put the facts of the present case are that the non-petitioner/complainant, namely Ghanshyam Prasad Poddar G.P. Poddar had filed one criminal complaint in the Court of Additional Chief Judicial Magistrate No.9, Jaipur Metropolitan, Jaipur against the present petitioner under Section 138 of the Negotiable Instruments Act herein after to be referred as the Act. Since the accused-petitioner had issued various cheques, one complaint in the year 2009 was also filed by the non-petitioner/complainant in the Court of Metropolitan Magistrate, N.E. K.K.D. Delhi under Section 138 of the Act. 3. It is further averred in the present petition that for settlement of the dispute the petitioner had issued one more cheque bearing No.379252 dated 15.11.2007 for Rs. 15,00,000/- in favour of the non-petitioner/complainant. The said cheque on presentation also bounced and the impugned complaint was filed. 4. The statement of the complainant/non-petitioner in the trial Court was recorded on 21.12.2011. The Court had permitted the petitioner to confront with the statement recorded in the Delhi High Court in September, 2011. After recording of the statement of the non-petitioner/complainant, the Court of Jaipur Metropolitan, had concluded the same. The remaining statement of the complainant in Delhi High Court was recorded in June, 2013. 5. The accused-petitioner had filed an application in 2013 praying inter alia that the complainant be again recalled as a witness in order to permit the accused-petitioner to confront him with the statement recorded in June, 2013. 6. The two Courts below have rejected the prayer. 7. This Court has drawn attention of the counsel appearing for the petitioner to proviso to Section 162 Cr.P.C. read with 145 of the Indian Evidence Act, 1872. 8. Section 145 of the Indian Evidence Act, 1872 reads as under:- "145. 6. The two Courts below have rejected the prayer. 7. This Court has drawn attention of the counsel appearing for the petitioner to proviso to Section 162 Cr.P.C. read with 145 of the Indian Evidence Act, 1872. 8. Section 145 of the Indian Evidence Act, 1872 reads as under:- "145. Cross-examination as to previous statements in writing.-- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." 9. Legislature in its wisdom has used previous statement recorded under Section 145 of the Indian Evidence Act to contradict or confront the witness. The statement recorded in June, 2013 is a subsequent statement. 10. Petitioner cannot be permitted to confront the witness with a subsequent statement by recalling the witness in cross-examination, simply for the reasons that if the same is permitted to it will be a case of unending litigation. Rule of fair trial and fair play demand that unending fishing or rowing inquiry should not be permitted. 11. Thus, the prayer made by the petitioner is contrary to the command of legislature expressed in proviso to Section 162 Cr.P.C. and Section 145 of the Indian Evidence Act, if they are read harmoniously. 12. Consequently, the present petition being devoid of merit, is, hereby, dismissed. 13. Upon disposal of the main petition, the stay application, filed therewith, does not survive; the same is also disposed of.Petition dismissed. *******