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2015 DIGILAW 801 (RAJ)

Ramesh Kanojiya v. State of Rajasthan

2015-04-09

VIJAY BISHNOI

body2015
JUDGMENT 1. - This criminal misc. petition under Section 482 Cr.P.C. has been field by the petitioner being aggrieved with the order dated 01.11.2014 passed by Additional Chief Metropolitan Magistrate No.1, Jodhpur Metropolitan (hereinafter referred to as 'the trial court') in Criminal Case No.1384/2012, whereby the trial Court has rejected the application filed by the petitioner under Section 311 Cr.P.C. with a prayer for recalling the petitioner for giving further evidence. 2. At the instance of the petitioner, proceeding under Section 138 Negotiable Instrument Act is pending against the respondent No.2. The petitioner has submitted his affidavit in support of the complaint on 15.10.2011. On 22.05.2012, the counsel for the complainant had started cross-examination of the petitioner, however, the same was deferred on two occasions. In the meantime, the respondent No.2 had moved an application under Section 91 Cr.P.C. The said application was disposed of on 25.09.2013 and the next date was fixed as 24.10.2013 for the purpose of further cross-examination of the petitioner. On that day, the counsel for the petitioner has informed the trial Court that the petitioner does not want to depose further, therefore, the evidence of the petitioner was closed. 3. On the next date of hearing, the petitioner had moved an application under Section 311 Cr.P.C. with a prayer that the evidence of the petitioner has been closed at the request of counsel for the petitioner because the counsel for the petitioner was under impression that his cross-examination was over. The trial Court after taking into consideration the application and after hearing the counsel for the parties has rejected the application filed by the petitioner under Section 311 Cr.P.C. while observing that the counsel for the petitioner has requested for closing the evidence of the petitioner despite having knowledge that the cross-examination of the petitioner was not over. 4. Being aggrieved with the rejection of the application under Section 311 Cr.P.C. vide order dated 01.11.2014 passed by the trial Court, the petitioner has filed this criminal misc. petition. 5. Learned counsel for the petitioner has submitted that he was under impression that the cross-examination of the petitioner was over and, therefore, he requested the trial Court that the petitioner does not want to depose further. It is contended that the mistake committed by him before the trial Court was bona fide and for that mistake, the petitioner should not be suffered. It is contended that the mistake committed by him before the trial Court was bona fide and for that mistake, the petitioner should not be suffered. Learned counsel for the petitioner has also submitted that he is ready to pay reasonable cost to the respondent No.2. 6. In support of the above contention, learned counsel for the petitioner has placed reliance on a decision of this Court rendered in Nitesh v. State of Rajasthan reported in 2012(2) WLC (Raj.) 703 . 7. Per contra, learned counsel appearing for the respondent No.2 has opposed the prayer of the petitioner and argued that when the counsel for the petitioner has requested the trial Court to close the evidence of the petitioner, the trial Court has not committed any illegality in rejecting the application of the petitioner under Section 311 Cr.P.C. vide impugned order. 8. Heard learned counsel for the petitioner and perused the impugned order. 9. It is true that the trial Court has closed the evidence of the petitioner at the request of counsel for the petitioner but there is no reason to disbelieve the statement of counsel for the petitioner that he requested the trial Court to close the evidence of the petitioner under the impression that the cross-examination of the petitioner was over. It is also noticed that with the closing of the evidence of the petitioner he is not going to be benefited in any manner and, therefore, it can be believed that the counsel for the petitioner has requested the trial Court to close the evidence of the petitioner without his consent under some wrong impression. 10. This Court in Nitesh's case (supra) after taking into consideration various pronouncement of Hon'ble Supreme Court as well as this Court has held as under:- "12. Even if it is held that the cross-examination of the witnesses could not be conducted because of negligence either of the Public Prosecutor or that of the counsel for the complainant then too the prosecution could not be made to suffer for the error so committed. It is the duty of the Court, as observed by the Hon'ble Apex Court, to see that such lacunae did not end up in destroying the prosecution case. If the witnesses are not subjected to cross-examination then the trial Court will be precluded from considering their testimony in its entirety. It is the duty of the Court, as observed by the Hon'ble Apex Court, to see that such lacunae did not end up in destroying the prosecution case. If the witnesses are not subjected to cross-examination then the trial Court will be precluded from considering their testimony in its entirety. Thus, in the opinion of this Court, no other order but to recall these witnesses for cross-examination was permissible in this case." 11. In view of the above discussions this criminal misc. petition filed by the petitioner is allowed. The order dated 01.11.2014 passed by the Additional Chief Metropolitan Magistrate No.1, Jodhpur Metropolitan in Criminal Case No.1384/2012 is set aside to the extent of dismissal of the application under Section 311 Cr.P.C. filed by the petitioner. The Additional Chief Metropolitan Magistrate No.1, Jodhpur Metropolitan is directed to give an opportunity to the petitioner to give further evidence on the next date of hearing provided the petitioner deposits a cost of Rs. 1000/-. The cost so deposited by the petitioner, be paid to the respondent No.2.Stay petition also stands disposed of.Petition allowed. *******