Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1346 (HP)

Anil Kumar v. Shamsher Singh

2018-07-19

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J. (Oral) - Petitioner, herein, an accused in a criminal complaint filed under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the Act) in the Court of learned Chief Judicial Magistrate, Nahan, District Sirmour (H.P.), has filed this petition being aggrieved by order dated 13.07.2018, passed by the trial Court, in case No.150/3 of 2013, titled Shamsher Singh versus Anil Kumar, whereby defence of petitioner-accused has been closed by order of the Court for want of presence of DW-1 Shiv Kumar, whose affidavit in examination-in-chief was tendered in evidence on 22.03.2018, but his cross-examination was deferred on the request made on behalf of complainant. Petitioner-accused had failed to produce the said witness on subsequent dates for his cross- examination resulting into the passing of impugned order. 2. Chapter XVII of the Act has been incorporated with a specific object of enacting a special provision by incorporating a strict liability so far as the cheque in Negotiable Instrument is concerned. The law relating to negotiable instruments is the law of commercial world and has been legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. 3. The object is both, punitive as also compensatory and restitutive. It is an unique exercise which blurs the dividing line between civil and criminal jurisdiction. It provides a single forum and single proceedings for enforcement ofcriminal liability for dishonouring the cheque and for enforcement of civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move to different fora for relief. Main purpose behind it is to provide a speedy disposal of the dispute arising out of a transaction by cheque. At the same time, it is also to be kept in mind that there is not only the provision of levy of fine/compensation but also sentencing the accused-respondent to imprisonment curtailing his prison liberty for commission of an offence. Therefore, balance of interest has to be maintained by the Courts. At the same time, an endeavour is always expected from the Court to avoid deliberate delay caused by any party with a purpose to linger on the proceedings. 4. Therefore, balance of interest has to be maintained by the Courts. At the same time, an endeavour is always expected from the Court to avoid deliberate delay caused by any party with a purpose to linger on the proceedings. 4. Learned counsel appearing for the petitioner- accused, submits that DW-1 Shiv Kumar could not be produced for cross-examination on account of serious ailment of his daughter-in-law, who is under treatment at PGI Chandigarh and as the question of personal liberty of petitioner-accused is involved, by taking a lenient view, at least one opportunity may be granted to petitioner-accused to produce the said witness before the trial Court for his cross- examination. It is informed that the case is listed before the trial Court tomorrow on, i.e. on 20.07.2018 for arguments. 5. Now, for considering prayer of petitioner-accused for granting him opportunity to produce DW-1 Shiv Kumar for his cross-examination, issuance of notice to the respondent, would not only cause unnecessarily harassment to respondent-complainant but would also cause undue delay in proceeding before the trial Court, which is at the last stage. In such a situation, it would be in the interest of parties that for ends of justice one more opportunity is granted to the petitioner-accused to produce DW-1 Shiv Kumar for his cross- examination, subject to payment of costs to the respondent- complainant. 6. On persuasive submission made on behalf of petitioner-accused, by way of special indulgence, one more opportunity is granted to produce DW-1 Shiv Kumar on 27.07.2018 before the trial Court for his cross-examination, subject to payment of costs of Rs. 1,000/- to the respondent on or before the said date. It is made clear that no further opportunity shall be given for producing DW-1 Shiv Kumar for his cross-examination by the trial Court on the request made by or on behalf of the petitioner-accused. Petitioner-accused shall also supply the copy of this order to the opposite party either personally or through counsel by tomorrow, i.e. 20 th July, 2018. The petition is accordingly disposed of in above terms, so also pending application(s), if any. 7. The Registry is directed to transmit the copy of this order to the trial Court immediately. Copy "Dasti".