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Himachal Pradesh High Court · body

2022 DIGILAW 787 (HP)

Virender Singh Jaswal v. Sunita Devi

2022-12-07

AJAY MOHAN GOEL

body2022
JUDGMENT : (Ajay Mohan Goel, J.) 1. By way of this petition, filed under Section 482 of the Criminal Procedure Code, the petitioner has challenged order dated 03.04.2019, passed by learned Trial Court, in terms whereof, an application filed under Section 145 (2) of the Negotiable Instruments Act by the petitioner herein, who is the accused before learned Trial Court, seeking leave of the Court to cross-examine the complainant, has been dismissed. 2. I have heard learned counsel for the parties and have carefully gone through the order impugned. 3. The impugned order on the face of it is a perverse order. Learned Court below has dismissed the application which was filed under Section 145 (2) of the Negotiable Instruments Act by the present petitioner, by returning findings contrary to the statute. Section 145 of the Negotiable Instruments Act reads as under: “145. Evidence on affidavit. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.” 4. Subsection (2) thereof contemplates that the Court may, if it thinks fit, and ‘shall’, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as on the facts contained therein. The language of Section 145 (2) of the Negotiable Instruments Act is explicit that whereas, on one hand, the Court may if it thinks fit, summon and examine any person giving evidence on affidavit as to the facts contained therein, but it “shall” summon and examine any person giving evidence on affidavit as to the facts contained therein, if an application to this effect is filed by the prosecution or the accused. 5. In the present case, in the light of such application having been preferred by the accused, this Court fails to understand as to where the discretion was vested upon learned Trial Court to have had refused the request of the accused to examine the complainant. 5. In the present case, in the light of such application having been preferred by the accused, this Court fails to understand as to where the discretion was vested upon learned Trial Court to have had refused the request of the accused to examine the complainant. While dismissing the application, learned Trial Court has in fact defeated the statutory right of the accused. Ordinarily also, the examination-in-chief, be it oral or by way of affidavit, has no significance unless the opposite party gets an opportunity to cross-examine the witness. Whether or not, the party avails that opportunity is a separate issue, however, the opposite party cannot be denied such opportunity and in the present case as the petitioner had done everything which he was legally supposed to do to cross-examine the complainant, dismissal of his application by learned Trial Court otherwise is a bad order. 6. Accordingly, as the impugned order is perverse and does violence to the statutory language of Section 145 of the Negotiable Instruments Act, this petition is allowed and the impugned order is quashed and set aside. Learned Trial Court is called upon to give an opportunity to the present petitioner to cross-examine the complainant. However, taking into consideration the fact that the impugned order was passed as far back as on 03.04.2019 and the present petition was preferred by the petitioner after a lapse of more than three years, the petitioner is burdened with costs of Rs.20,000/-, which shall be paid by the petitioner to the respondent herein, i.e. the complainant. It is made clear that the payment of costs shall be a condition precedent for giving effect to the order which has been passed by the Court today and in case the petitioner fails to pay the said costs to the respondent, then no opportunity will be given to the petitioner. The costs shall be paid by the petitioner to the respondent/complainant by way of a Bank Draft. The parties through counsel to appear before learned Court below on 02.01.2023, on the said date, next date will be given by learned Court below for cross-examination of the complainant as also for payment of the costs. 7. Petition stands disposed of, so also the pending miscellaneous applications, if any. Interim order, if any, stands vacated.