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2023 DIGILAW 977 (JHR)

Md. Irfan Khan @ Irfan Khan v. State of Jharkhand

2023-08-02

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : By the Court : Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 23.09.2022 passed by learned Judicial Magistrate-XXVIII, Ranchi in M.C.A. No.4937 of 2022 arising out of Complaint Case No.1782 of 2013 by which the learned Magistrate has allowed the prayer of the complainant for his cross-examination by the accused subject to payment of Rs.5,000/- by the complainant to the accused and also ordered that the complainant shall make himself available on next two days from 23.09.2022 when the complainant will be examined as witness and the accused will not be permitted to any adjournment on the said next two days. 3. The brief fact of the case is that the petitioner is an accused of Complaint Case No.1782 of 2013 involving the offence punishable under Section 138 of the Negotiable Instrument Act. The complainant is the payee of the cheque which was dishonoured and in connection of which the case has been instituted. The complainant examined himself as a witness on 17.02.2022 and some documents were marked Exhibits. But the defence prayed for time to cross-examine the complainant who was examined as C.W.1 on 17.02.2022. On the next date fixed on 05.04.2022, 28.04.2022 and 22.06.2022 the complainant was present. On 05.04.2022, the defence did not cross-examine the complainant even though the complainant was present for his further cross-examination. The case was next fixed to 11.08.2022 for recording of the statement under Section 313 Cr.P.C. On 11.08.2022, the complainant filed an application under Section 311 Cr.P.C. for his cross-examination by the accused person which was allowed by the said order dated 23.09.2022 passed in M.C.A. Case No.4937 of 2022 arising out of Complaint Case No.1782 of 2013. 4. Learned counsel for the petitioner submits that the procedure for a complaint involving the offence punishable under Section 138 of Negotiable Instrument Act is summary triable in nature and ample opportunities to the opposite party No.2/complainant to adduce his evidence in between 2013 to 2022 for long period of nine years has been given but the complainant failed to do so. On 11.08.2022, the statement of the accused has been recorded under Section 313 Cr.P.C. and the case is fixed for examination of the defence witnesses but on 18.08.2022, the opposite party No.2/complainant filed the said application under Section 311 Cr.P.C. with a prayer to give direction to the accused for his cross-examination as a witness which was allowed. It is next submitted that the said order is illegal order. Hence, it is submitted that the order dated 23.09.2022 passed by learned Judicial Magistrate-XXVIII, Ranchi in M.C.A. No.4937 of 2022 arising out of Complaint Case No.1782 of 2013, be quashed and set aside. 5. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 opposes the prayer for quashing the order dated 23.09.2022 passed by learned Judicial Magistrate-XXVIII, Ranchi in M.C.A. No.4937 of 2022 arising out of Complaint Case No.1782 of 2013 and learned counsel for the opposite party No.2 submits that in fact the petitioner has not come to court with clean hands and if the cross-examination of the complainant as C.W.1 remains inconclusive and the judgment is passed against him of which there is every possibility, he will take the advantage that without giving any proper opportunity to cross-examine the C.W.1, the judgment has been passed against him and will pray for setting aside the judgment of conviction, if passed against him. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 6. On being asked by the Court, learned counsel for the petitioner submits that the petitioner who is the accused, intends to further cross-examine the C.W.1. 7. Having heard the rival submissions made at the Bar and after carefully going through materials available in the record, as further cross-examination of the C.W.1-complainant/opposite party No.2 has been allowed by the trial court vide order dated 23.09.2022 and the petitioner also wants to cross-examine the C.W.1, hence, this Court do not find any illegality in the said order dated 23.09.2022 passed by learned Judicial Magistrate-XXVIII, Ranchi in M.C.A. No.4937 of 2022 arising out of Complaint Case No.1782 of 2013 and the learned trial court is directed to fix the case on 23.08.2023. On that date the complainant and the petitioner/accused person both be directed by the trial court to remain present in court and the accused person be asked to cross-examine complainant/opposite party No.2/C.W.1 and if on that date the accused person fails to do the same, the C.W.1 will be discharged as a witness and if for any reason the C.W.1 fails to appear in court on 23.08.2023, the learned trial court will give one more chance to the complainant to make him physically present before it for his cross-examination by the petitioner/accused and if even on the second date fixed if the complainant fails to appear for his cross-examination then the learned trial court is directed to pass appropriate orders. 8. Accordingly, this Cr.M.P. is disposed of with the aforesaid observation.