Govind Kataria vs State & Anr

The instant miscellaneous petition has been preferred by the

petitioner being aggrieved of the order dated 4.1.2011 passed by the

learned Special Judicial Magistrate (N.I.Act) No.2, Jodhpur in Cr. Case

No. 7850/2009 whereby the learned Magistrate whilst reading over the

accusation of the offence to the accused petitioner denied him the

opportunity of cross examining the complainant amd proceeded to

examine the accused under Section 313 Cr.P.C.

Succinctly stated the facts of the case are that the

respondent no.1 filed a complaint against the petitioner for the offence

under section 138 of the negotiable instruments act in the year 2008. The

learned trial court on the basis of the affidavit filed by the complainant

proceeded to summon the accused by order dated 7.1.2008. The accused

after being served with process, appeared before the trial court for the first 2

time on 4.1.2011 on which date the learned trial court directed the

petitioner to be released on bail. Simultaneously and on the very same

day, substance of the accusation was read over to the accused. The

accused pleaded not guilty.

The learned Magistrate proceeded to analyse and interpret

the provisions of Negotiable Instruments Act and holding that the burden

of proof was on the accused as the presumption of law operated in favour

of the complainant and thus the complainant need not be examined on

oath on two occasions i.e. one before cognizance and thereafter upon

appearance of the accused. The learned Magistrate further observed that

the accused was not entitled to cross examine the complainant and his

witnesses as of right.

The learned Magistrate held that after the accusation was

read over to the accused;

(a) the accused, if he desired to cross examine the

complainant and his witnesses, was under an obligation

to file an application under Section 145(2) of the N.I.Act

for summoning the complainant or his witnesses,

(b) if the application under Section 145(2) of the N.I.Act was

not filed or such application was rejected thereafter, the

subsequent to the accusation being read over to the

accused, the accused would be examined under Section

313 Cr.P.C.,

(c) the accused and other witnesses would be examined in

defence and the complainant would be provided

opportunity to cross examine them,

(d) final arguments would be heard and the judgment would

be pronounced.

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After laying down such procedure for trials of the complaint

of an offence u/s. 138 of the Negotiable Instrument Act, the learned

Magistrate proceeded to hold by the order dated 4.1.2011 that as the

accused had not submitted any application under Section 145(2) of the

N.I.Act, he be examined under Section 313 Cr.P.C. and thereafter the

case was posted for defence evidence. The said order passed by the

learned Special Judge is subject matter of challenge by way of instant

miscellaneous petition.

Notice of the petition was issued to the complainant

respondent but nobody has put in appearance despite service.

Mr. J.K.Chanda, learned counsel for the petitioner submits

that the order passed by the trial court is totally illegal and amounts to a

gross abuse of the process of the Court. He submits that as per Section

139 of the Negotiable Instruments Act, the burden of proof is on the

accused to rebut the presumption. He submits that in order to rebut the

presumption and for ensuring a fair trial, the accused has to be provided

with an opportunity to cross examine the complainant. He further submits

that right to cross examine the prosecution witness is a substantive right

of the accused and cannot be bye-passed or circumvented by any

procedural technicality. He contends that if the view taken by the learned

Special Magistrate is adhered to, it would virtually amount to convicting

the accused without trial. He thus, prays that the order impugned

deserves to be quashed.

For proper appreciation of the arguments advanced by the

learned counsel for the petitioner, the relevant provisions of law need to

be examined.

Section 139 of the N.I.Act reads as below:-

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"139. Presumption in favor of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

The word "complaint" is not defined under the Negotiable

Instruments Act. Thus, the meaning of the "complaint" as defined in

Section 2(d) of the Cr.P.C. has to be adopted.

Section 2(d) of the Cr.P.C. is reproduced hereunder:-

"(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

Section 273 of the Cr.P.C. reads as below:-

"273.Evidence to be taken in presence of accused.- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader."

As per Section 273 Cr.P.C., the recording of the evidence in

presence of the accused is a mandatory requirement and cannot be by-

passed unless a provision of law expressly provides for the same.

Section 138 of the Evidence Act reads as below:-

"138 Order of examinations.- Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witnes testified on his examination-in-chief."

Section 254 of the Cr.P.C. reads as below:-

"254 Procedure when not convicted.- (1) If the 5

Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produced in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court."

Section 262(1) of the Cr.P.C. reads as below:-

"262. Procedure for summary trials.-(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned."

From the perusal of the above provisions, it is apparent that

for proceeding with a case in a summary manner, the procedure of

summons trial prescribed in Chapter-XX Cr.P.C. has to be adopted. As

per the procedure of the summons trial laid down under Chapter XX , in

case where the accused does not plead guilty, the Magistrate is required

to hear the prosecution and take all such evidence as may be produced in

support of the prosecution. Sub-clause (2) of Section 254 provides that

the accused or the prosecution may request for summons to be issued to

any witness directing him to attend or produce any document or other

thing. The Magistrate can impose expenses before summoning the

witnesses..

In the instant case, the learned trial Judge has dispensed

with examination in chief of the complainant and has straight off

proceeded to record the statement of the accused upon his appearance in

pursuance to the process issued by the Court.

Even if the provisions prescribed under Cr.P.C. for summary 6

trials are followed, then too the recording of the substance of the evidence

is essential as per Section 264 Cr.P.C. When the case is being tried as

summons case then also where the accused does not plead guilty,

evidence of the prosecution has to be recorded under Section 254(1) of

the Cr.P.C.

Section 138 of the Evidence Act mandates that the

witnesses shall be first examined in chief and then if the adverse party so

desires cross examined, and then if the party calling him so desires

reexamined. Thus, once the adverse party desires to cross examine the

witness, subjecting of the witnesses to cross examine is mandatory as per

the said provision. The "evidence" as defined in the Section 3 of the

Evidence Act means and includes all statements which the Court permits

or requires to be made before it by the witness in relation to matter of fact

under enquiry. Thus unless the witness makes a statement before the

Court, what has been stated in the complaint would not be evidence and

will not be admitted in evidence.

The law is well settled that a previous statement of the

witness if taken down in writing is not a substantive piece of evidence and

can only be used to confront the witness and nothing beyond that.

From the scheme of the provisions which are quoted

hereinabove, it is apparent that the Cr.P.C. and the Evidence Act provide

mandatory procedures for trial of a case. Unless a witness is examined on

oath by the court, in the presence of the accused, the statement of the

witness would not be admissible in evidence. If the accused desires to

cross examine the witness, the Court is under an obligation and duty

bound to permit such cross examination otherwise the trial would be

vitiated on the ground of not adhering to the mandatory principles of trial

laid down under the Cr.P.C. and Evidence Act.

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The right of the accused to cross examine the witnesses is

virtually an extension of the fundamental right of every accused to defend

himself as guaranteed by Article 21 of the Constitution of India.

In view of the aforesaid discussion, this Court is of the

opinion that the trial court committed a grave error and gross abuse of the

process of the Court in disallowing the accused the right to cross examine

the witness after the reading over the accusation of the offence under

Section 138 of the N.I.Act to him. Section 145 of the N.I.Act also only

permits that the evidence of the complainant may be given on affidavit

subject to just exception. It may also be mentioned here that the

provisions of Section 145 of the N.I. Act only permits the complainant to

his evidence on affidavit. The complainant's witnesses are not permitted

to file affidavit in evidence. Thus, evidence on affidavit can only be

permitted till the pre-summary stage and not beyond that. Some

exceptions have been enumerated hereinabove.

Therefore, this Court is of the opinion that the order passed

by the learned Special Magistrate denying the accused the right to cross

examine the complainant and his witnesses cannot be sustained. The

Hon'ble Bombay High Court in the case of Indraprastha Holdings Ltd. Vs.

Vijay J.Shah & Anr. reported in 2006(2) NIJ-152 (Bombay) held that the

provision of Section 145 does not in any manner affect the right of the

accused to cross examine the complainant and his witnesses. A

coordinate Bench of this Court in Prakash Chand Vs. State of Rajasthan

reported in 2010(1) Civil Court Cases-206 has virtually disapproved the

practice whereby the affidavit of the complainant is permitted to be read in

evidence holding that the examination of the complainant in support of the

complaint is mandatory.

In view of the aforesaid discussion, the miscellaneous 8

petition deserves to be accepted and is hereby allowed. The order dated

4.1.2011 passed by the learned Special Judicial Magistrate, (N.I.Act)

No.2, Jodhpur whereby the learned Special Judicial Magistrate has

proceeded to record the statement of the accused under Section 313

Cr.P.C. whilst disallowing him the right to cross examine the complainant

and his witnesses is quashed. The learned trial court shall now proceed

from the stage after the accusation was read to the accused in

accordance with law and as indicated above.

(SANDEEP MEHTA), J.

/Sushil/