HITENDER WALIA Vs. ASHOK KUMAR

JUDGEMENT

(1.) The petitioner/accused is facing charges for committing an offence punishable under Section 138 of the Negotiable Instruments Act. The respondent/complainant had adduced his evidence upon the charge. The learned counsel for the petitioner/accused, had, also cross-examined the complainants' witnesses. However, after completion of proceedings drawn under Section 313 Cr.P.C., an application was instituted before the learned trial Magistrate, application whereof is cast under the provisions of Section 311 Cr.P.C., wherein a prayer was made, of, the petitioner/accused being permitted to confront the complainant, with documents borne in Ext. in CW- 1/B to CCW-1/E and in CW-1/F-1 to CW-1/F-2. Since the tendering(s), of, all the aforesaid documents also embossing(s) thereupon of exhibition marks, occurred, in the presence of the learned defence counsel who, (i) as evident from a perusal of the zimani orders, thereat, remained accompanied by the petitioner/ accused, thereupon with neither the defence counsel nor the petitioner/accused, making, any protests qua tendering(s) of the aforesaid documents nor making any protest, for, exhibition marks being made thereon, thereupon the prayer made in the application for the accused being permitted to confront the complainant with the aforesaid exhibits, stands aptly rejected. Significantly, also for the reason, of, the apposite documents, purportedly signatured by the accused, not, amenable of being proved to be not signatured by the accused, merely upon, his being permitted to confront therewith, the complainant, (ii) rather dehors tendering thereof(s) besides embossing(s) of exhibition marks thereon, the best evidence in respect of the accused, proving of, the apposite documents being not signatured by him would, (iii) erupt evidently upon a reference being made to the hand writing expert, (iv) especially when in respect thereof, the petitioner/accused has made a statement in proceedings drawn under Section 313 Cr.P.C. Since the aforesaid remedy, is still available for being canvassed by the petitioner/accused, by, his motioning the learned trial Magistrate, thereupon the refusal of relief in respect of the respondent/complainant being resummoned, for, his being confronted with the aforesaid documents, is, to be concluded to be not wanting in any illegality.

(2.) The further relief claimed in the application, cast, under the provisions of Section 311 Cr.P.C., was, for the petitioner/accused being permitted to re-cross-examine the respondent/complainant, in respect of his financial capacity, to defray a loan vis-à-vis the petitioner/accused. The reason(s) for making the aforesaid prayer, is, a sequel of one Sandeep Aggarwal, Advocate along with petitioner/accused while conducting the cross-examination, of, the respondent/ complainant, his thereat omitting to put suggestions apposite thereto vis-a-vis the respondent/complainant. Since, as aforestated Mr. Navneet Aggarwal, Advocate at the stage of his holding the respondent/complainant, to cross-examination, was accompanied by the petitioner/accused, also when he thereat omitted to put questions appertaining to his financial capacity to defray a loan vis-à-vis the accused renders omissions thereof being construable to arise not from any indiligence or incompetence, of ,one Mr. Sandeep Aggarwal, Advocate, rather being construable, to, arise from a mis-communication inter-se both besides (i) omission(s) in respect thereto rather are to be construed to through, the instant application beget untenable curings thereof, from, hence a sheer afterthought, on the part of the petitioner/accused. Also, the reason as made out in the application, of, one Mr. Sandeep Aggarwal, Advocate, who conducted the cross-examination of the respondent/complainant AND who upon holding him to cross-examination, thereat omitted to put the aforesaid suggestions, of, hence thereupon his lacking the legal capacity, cannot be accepted on the ground, of, it being also engendered by afterthought, given nowat, also Mr. Sandeep Aggarwal, Advocate, representing the accused. Consequently the impugned order is affirmed and maintained. However, liberty is reserved to the petitioner/accused, to, through an appropriate application filed before the learned trial Magistrate, under, Section 45 of the Evidence Act, seek in accordance with law, determination of veracity(s) of his authoring the apposite documents, purportedly carrying his signatures. All pending applications stand disposed of accordingly.

(3.) Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.