ANIL SAXENA Vs. JAI PARKASH

JUDGEMENT

(1.) This order will dispose of the aforementioned ten petitions. Petitioner is facing trial in number of complaints under Sec. 138 of the Negotiable Instruments Act, 1881 read with Sec. 406/420 Penal Code filed by same respondent. The grievance of the petitioner in the present petitions is that the entire trial against the petitioner is vitiated as the evidence has been recorded in one complaint, Complaint No. 730 and the cross examination has been mentioned in vemcular in all the complaints. To demonstrate the said irregularity, the petitioner has referred to the statements of the complainant recorded in all the cases. It has been claimed that denovo trial should be ordered from the stage of cross examination of complainant. Counsel has relied upon judgments in Mohammad Khan Vs. Emperor, A.I.R. 1928 Lahore 34 and Siddiq Ali and another Vs. Rex. AIR (37) 1950 Allahabad 119 to contend that placing on the record mere copies of the evidence of witnesses recorded during the course of a trial relating to another charge against the same accused would vitiate the trial as each witness must be examined separately in each case. Counsel for the complainant has submitted that there is no such irregularity in the trial on the basis of which the proceedings could be said to be vitiated. It has been argued that the cross examination of the complainant has been recorded on different dates by the counsel for the petitioner before the trial Court and that the original record would indicate that it is not the photocopy of one cross examination that has been appended in the other cases.

(2.) After hearing learned counsel for the petitioner as well as counsel for the complainant-respondent, this Court is of the opinion that the complaints have been filed by the respondent under Sec. 138 of Negotiable Instruments Act, 1881 in the year 2007, 2008 and 2009 claiming that the petitioner-accused had issued cheques to discharge his liability after partnership business of the firm being run by the complainant and the petitioner was finally wound up making the petitioner liable to settle the accounts by paying the cheques in installments. There is no dispute regarding the fact that in case there is any irregularity causing prejudice to the rights of an accused, he is entitled to the benefit of doubt and can claim acquittal. In this case if the complainant is permitted to be re-summoned and cross examined as has been sought by the petitioner no useful purpose would be served as at present the trial is at the stage of recording of defence evidence. The petitioner has got a right to produce defence as his statement under Sec. 313 Cr.RC. has already been recorded. It will be always open to the petitioner to establish in his defence that the cheques had not been issued to discharge any liability. He will also be entitled to challenge the validity of the proceedings claiming that the same have not been conducted in accordance with procedure of law or that as per the procedure of fair trial. He will also be entitled to produce any documentary evidence in his favour to establish his valid defence. Since cross examination was recorded on different dates, it will not be appropriate to consider that the cross examination in one case has been placed in another case. The weakness of the prosecution case will be available to the petitioner at the final stage of arguments to seek benefit of the trial being vitiated by relying upon the judgments cited before this Court.

(3.) Finding no force in the present petitions under Sec. 482 Cr.RC., the same are dismissed without prejudice to the rights of the petitioner to lead defence evidence and challenge the legality and validity of the proceedings at final stage.