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Madhya Pradesh High Court · body

2021 DIGILAW 497 (MP)

Pooran Singh Yadav v. Saroj Sharma

2021-06-09

G.S.AHLUWALIA

body2021
ORDER 1. This application under section 482 of CrPC has been filed against the order dated 30.7.2019 passed by Vth Additional Sessions Judge, to the Court of 1st Additional Sessions Judge Vidisha in Criminal Revision No. 6/2019, by which the order dated 15.3.2019 passed by J.M.F.C., Vidisha in Criminal Case No. 2061/2015 has been set aside and the respondent has been permitted to cross examine the applicant/complainant. 2. The necessary facts for disposal of present application in short are that the applicant has filed a criminal complaint under section 138 of Negotiable Instruments Act. 3. By order dated 12.7.2016, the trial Magistrate, directed that in the light of the judgment passed by the Supreme Court in the case of Indian Bank Association v. Union of India reported in (2014) 5 SCC 590 , the respondent may file an application seeking permission to cross examine the complainant. However, no such application was filed. Thereafter, 20.10.2016, it was held by the trial Magistrate, that since, the respondent has not sought permission to cross examine the complainant, therefore, permission can not be granted and accordingly, the case was fixed for examination of the respondent under section 313 of CrPC. Thereafter, it appears that the respondent filed an application for cross examination of the complainant, but the said application was rejected by order dated 8.12.2016, by holding that the trial Magistrate has no power to review its order. It appears that against the order dated 20.10.2016, the respondent preferred a revision, which was dismissed by the Revisional Court. It appears that once again the respondent filed an application for recall of complainant for cross examination. The said application was dismissed by order dated 15.3.2019. 4. Being aggrieved by the order dated 15.3.2019, the respondent filed a revision, which has been allowed by the revisional Court by holding that cross examination is an important tool in the hand of the accused and the said right should not be taken away. 5. Challenging the order passed by the Court below, it is submitted by the Counsel for the applicant, that the revisional Court has not considered the law laid down by the Supreme Court in the case of Indian Bank Association (supra), and should not have allowed the revision. 6. None appears for the respondent though served. 7. Heard the learned Counsel for the applicant. 8. 6. None appears for the respondent though served. 7. Heard the learned Counsel for the applicant. 8. The Supreme Court in the case of Indian Bank Association (supra), has held as under : 23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal Courts all over the country dealing with cases under section 138 of the Negotiable Instruments Act, for which the following directions are being given : 23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken. 23.3. The Court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the Court may pass appropriate orders at the earliest. 23.4. The Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under section 145(2) for recalling a witness for cross-examination. 23.5. The Court concerned must ensure that examination-inchief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in the Court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the Court. 24. The Court has option of accepting affidavits of the witnesses instead of examining them in the Court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the Court. 24. We, therefore, direct all the criminal Courts in the country dealing with section 138 cases to follow the abovementioned procedures for speedy and expeditious disposal of cases falling under section 138 of the Negotiable Instruments Act. The writ petition is, accordingly, disposed of, as above. (Underline supplied) 9. If the orders passed by the trial Magistrate are considered in the light of the directions given by the Supreme Court, then it is clear that by order dated 12.7.2016, the trial Magistrate had directed the respondent to file an application for cross-examination of the complainant, but in spite of that, no such application was filed. The respondent was being represented by her counsel, therefore, in the light of the order dated 12.7.2016, it cannot be said that since the respondent was not aware of the niceties of the law, therefore, She could not file an application for cross-examination of the complainant. The Court below has ignored the order dated 12.7.2016, by holding that the respondent was not aware of the technicalities of the law. 10. Further, the revisional Court lost sight of the fact, that the revision filed by the respondent against the order dated 20.10.2016 was dismissed and thus, the order of the trial Magistrate by which permission was refused to cross examine the complainant was already affirmed. Although the copy of the order passed by the revisional Court is not available on record, but it is mentioned in the order sheet of the Trial Magistrate dated 11.5.2017. 11. The trial Magistrate by its order dated 8.12.2016 had held that it has no jurisdiction to review its own order. The said order is in accordance with law laid down by the Supreme Court by its order dated 16.4.2021 in the case of In Re: Expeditious Trial of Cases under section 138 N.I. Act, 1881.[Reported in 2021 (2) JLJ 373]. 12. Thus, this Court is of the considered opinion, that the revisional Court has passed the impugned order by ignoring the law laid down by the Supreme Court from time to time. 13. 12. Thus, this Court is of the considered opinion, that the revisional Court has passed the impugned order by ignoring the law laid down by the Supreme Court from time to time. 13. Further expeditious disposal of cases registered under section 138 of N.I. Act, 1881 is necessary to uphold the sanctity of cheques. In the present case, the complaint was filed in the year 2015, and the respondent is playing all sorts of tactics to avoid final hearing. 14.Accordingly, the order dated 30.7.2019 passed by 1st Additional Sessions Judge, to the Court of Vth Additional Sessions Judge Vidisha in Criminal Revision No. 6/2019 is hereby set aside. The trial Magistrate is directed to decide the complaint within a period of 2 months from the date of resumption of normal Court functioning. 15. The office is directed to immediate communicate this order to the Trial Magistrate for necessary information and compliance. 16. With aforesaid observations, this application is Allowed.