Shri Kewal Dua v. Shri T.C. Sharma

1. The petitioner challenges order dated 03.10.2011 of learned Metropolitan Magistrate by which he was not given reasonable opportunity to cross-examine the complainant. The said order was challenged in revision which was dismissed by an order dated 19.01.2013. Counsel urged that the petitioner was not given reasonable opportunity of being heard and when the case was taken up at 04.15 P.M., the complainant could not be cross-examined due to absence of the counsel. The petition is contested by the respondent.

2. I have heard the submissions of the parties and have examined the record. Complaint case under Section 138 Negotiable 2013:DHC:3885 Instruments Act is pending before the Trial Court since 2003 in which respondent was summoned vide order dated 15.12.2003. He put his appearance only on 07.09.2005 and notice issued under Section 251 Cr.P.C. was given on 01.04.2006. The case was pending for evidence and finally the evidence was closed on 07.11.2007. An application under Section 311 Cr.P.C. was moved by the petitioner to cross-examine the complainant and by an order dated 27.02.2008 it was allowed. However, the petitioner did not cross-examine the complainant on one ground or the other. On 03.10.2011, the complainant was present since morning. None had put appearance on behalf of the petitioner/accused. The Trial Court kept the matter pending to wait for the petitioner/accused. At 04.30 P.M., the matter was taken up again, however, the petitioner/accused was absent. It was recorded in the order-sheet that after lunch, counsel for the accused was present and had sought some time on the ground that the accused was coming. However, when the case was called at 04.15 P.M. neither the counsel nor the petitioner / accused was present. A clerk for the counsel for the accused moved an application for exemption of the accused as he was unable to come from Ludhiana. The Trial Court granted exemption subject to filing of relevant documents. Since none was present to cross-examine the complainant, the opportunity to cross-examine him was closed and the case was fixed for final arguments on 15.10.2011. The said order was challenged in revision and by a detailed order and with cogent reasons, it was dismissed on 19.01.2013. I find no illegality or irregularity in both the orders. The petitioner himself was at fault / negligent in not cross-examining the complainant since 2008 despite availing various opportunities. On 03.10.2011, the Court was generous to await for the arrival of the accused. Neither the accused nor his counsel was available when the case was called. Counsel did not appear to crossexamine the complainant. In the present petition, no valid reasons have been given for the absence of the petitioner or his counsel to crossexamine the witness. An attempt has been made to put blame upon the Court which has no basis. Taking into consideration the conduct of the petitioner and his failure to cross-examine the complainant at relevant time, I find no merit in the present petition and the same is dismissed with cost ` 5,000/-. Pending application also stands disposed of being infructuous.

JUDGE AUGUST 06, 2013 tr