HIMMAT SINGH Vs. DEVINDER SINGH

JUDGEMENT

(1.) By way of this petition filed under Sec. 482 of the Code of Criminal Procedure, the petitioner has challenged order dtd. 28/5/2022, passed by the Court of learned Chief Judicial Magistrate, Bilaspur, H.P. in Cr. MA No. 27/4 of 2020 filed in Case No. 33/3/2019/2015, titled as Devender Singh Vs. Himmat Singh, in terms whereof, an application filed under Sec. 145(2) of the Negotiable Instruments Act by the present petitioner to call the complainant for re-cross examination has been dismissed.

(2.) Brief facts necessary for the adjudication of present petition are as under:- A complaint has been filed under Sec. 138 of the Negotiable Instruments Act by the respondent herein against the present petitioner, who is accused in the case. The allegation in the complaint, copy whereof is appended with the present petition as Annexure P-1, is that financial assistance to the tune of Rs.2,75,000.00 was provided by the complainant to the accused and in order to make good the said amount, the petitioneraccused issued a cheque for an amount of Rs.2,75,000.00 dtd. 27/2/2014 drawn upon State Bank of Patiala, Branch Office Nalagarh, District Solan, H.P., which cheque when presented for encashment was dis-honoured by the Bank on the ground of'insufficient funds'. The complaint was filed in the year 2014. The application filed under Sec. 145(2) of the Negotiable Instruments Act, copy whereof is on record as Annexure P-5 was preferred by the petitioner-accused, inter alia, on the ground that while preparing the case of arguments, it transpired that counsel for the applicant had not put material questions to the complainant which were necessary for proper adjudication of the case at the time when the complainant had entered the witness box for the purpose of cross-examination. According to the applicant/accused, this necessitated the re-cross examination of the complainant, so that it could be proved before the Court that there was no legally enforceable debt due from the accused to the complainant. This application has been rejected by the learned Trial Court in terms of order dtd. 28/5/2022, inter alia, on the grounds that an earlier application filed under Sec. 243(2) read with Sec. 311 of the Code of Criminal Procedure, in which also, a similar prayer for further cross-examination was made, was dismissed by the Court on 3/7/2019 and revision preferred against the order of rejection before the High Court was dismissed as withdrawn. Learned Trial Court has further held that Sec. 145(2) of the Negotiable Instruments Act even otherwise speaks only about further crossexamination of a witness when an affidavit has been filed in examinationin-chief and there was nothing in this statutory provision to the effect that any party can further cross-examine the witness already examined. Learned Court also held that as earlier application on the same ground stood dismissed, therefore also, the same was not maintainable and by returning these findings, the application has been dismissed.

(3.) Learned counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law for the reason that learned Trial Court has erred in not exercising the jurisdiction conferred upon it under Sec. 145(2) of the Negotiable Instruments Act. Learned counsel has submitted that there is no bar under Sec. 145(2), more so, an express bar, which debars the Court from ordering re-cross examination of the complainant in case the interest of justice so demands. Learned counsel further submitted that as far as the petitioner earlier also having preferred an application under Sec. 243(2) read with Sec. 311 of the Code of Criminal Procedure and the same having been dismissed by the learned Trial Court is concerned, the same though is a matter of record, but the revision petition which was filed by the petitioner against dismissal of said application was withdrawn from the High Court, with liberty to file an application at an appropriate stage, which opportunity was granted to the petitioner. Learned counsel further submitted that otherwise also reasons are well spelled out in the application as to why re-cross examination of the complainant was being sought for and, therefore, the impugned order being not sustainable in the eyes of law, deserves to be quashed and set aside and the petition be allowed by issuing a direction to the learned Trial Court to recall the complainant for the purpose of re-cross examination.