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2020 DIGILAW 3 (RAJ)

Hiralal v. State of Rajasthan

2020-01-02

VIJAY BISHNOI

body2020
JUDGMENT Vijay Bishnoi, J. - This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 22.10.2019 passed by the Special Metropolitan Magistrate (NI Act Cases) No.5, Jodhpur Metropolitan (for short 'trial court' hereinafter) whereby application filed by the petitioner under Section 311 Cr.P.C. has been rejected. 2. The proceedings under Section 138 of the Negotiable Instruments Act, initiated at the instance of respondent No.2 (complainant), are pending against the petitioner. In the said proceedings, on 19.8.2019, the complainant was present before the trial court, however, despite providing opportunities to the counsel for the petitioner, he failed to cross-examine her and, therefore, the trial court vide order dated 19.8.2019 closed the opportunity of the petitioner to cross-examine the complainant. 3. Being aggrieved with the closure of opportunity of the petitioner of cross-examining the complainant, the petitioner preferred an application under Section 311 Cr.P.C. on 7.9.2019 before the trial court with a prayer to recall the complainant so that the counsel for the petitioner may cross-examine her. The trial court vide order dated 22.10.2019 rejected the said application while observing that the complainant is 62 years' old lady and she attended the court on several dates, however, the counsel for the petitioner for one or other excuse did not crossexamine her without there being any sufficient reason and, therefore, the opportunity of the petitioner to cross-examine the complainant was closed. The trial court was of the view that if the application filed by the petitioner under Section 311 Cr.P.C. is allowed, it would amount to review its earlier order, which is not permissible under the law, therefore, the said prayer was rejected and the application filed by the petitioner under Section 311 Cr.P.C. was dismissed. 4. Learned counsel for the petitioner has submitted that the counsel for the petitioner appearing on behalf of the petitioner before the trial court did not deliberately withhold the crossexamination of the complainant before the trial court and on 7.8.2019, he was busy in this Court and, therefore, he could not cross-examine the complainant. Learned counsel for the petitioner has submitted that one last opportunity may be granted to the petitioner to cross-examine the complainant for which the petitioner is ready to pay a cost of Rs.10,000/- to the complainant. 5. Learned Public Prosecutor has opposed the prayer of the learned counsel for the petitioner. 6. Learned counsel for the petitioner has submitted that one last opportunity may be granted to the petitioner to cross-examine the complainant for which the petitioner is ready to pay a cost of Rs.10,000/- to the complainant. 5. Learned Public Prosecutor has opposed the prayer of the learned counsel for the petitioner. 6. Having heard learned counsel for the parties and having taken into consideration the facts and circumstances of the case particularly the contention of learned counsel for the petitioner that the petitioner is ready to pay a cost of Rs.10,000/- to the complainant, in the interest of justice, this criminal misc. petition is allowed. The orders dated 19.8.2019 and 22.10.2019 passed by the trial court are set aside. The trial court is directed to provide an opportunity to the petitioner to cross-examine the complainant provided he pays a cost of Rs.10,000/- to the complainant on or before the date fixed by it for cross-examining the complainant. It is made clear that if the petitioner fails to pay the cost of Rs.10,000/- to the complainant, the trial court will not be under any obligation to grant any opportunity to the petitioner to cross-examine the complainant.