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2021 (6) TMI 476 - HC - Indian LawsDishonor of Cheque - examination of witness denied - opportunity to challenge the said order of rejection not granted or failure to avail the opportunity availed - rebuttal of presumption - HELD THAT:- Even in the cross- examination of PW-1, the accused had taken sufficient time. Since the accused failed to utilise the opportunities given to him to cross-examine PW-1, it was taken that the accused had not cross-examined PW-1. It is thereafter, by filing a recalling application, he got an opportunity to cross-examine PW-1. Accordingly, the matter was listed for cross-examination of PW-1 on 08-12-2014. Even on the said date also, he did not cross-examine PW-1, as such, once again, it was taken that there was no cross-examination of PW-1 from the accused's side. Subsequently, the accused made one more similar application for an opportunity to cross-examine PW-1, which was again allowed. Accordingly, on 14-01-2015, he proceeded to cross-examine PW-1. Thus, during the trial also, the accused has adopted delay tactics. The conduct of the accused that through out he has been interested in adopting delay tactics rather than assisting the Court in the disposal of the case on its merit. Still, the Trial Court had given him sufficient opportunities to lead defence evidence after recording the statement of the accused under Section 313 of the Cr.P.C. and also subsequently by allowing his application filed under Section 311 read with Section 91 of the Cr.P.C. Since the accused failed to make use of the opportunities which was sufficiently given to him, the Trial Court has proceeded to reject the similar application filed under Section 311 of the Cr.P.C. and proceeded to pass the impugned judgment - even by rejecting the second similar application filed by the accused under Section 311 of the Cr.P.C., no prejudice has caused to the interest of the accused. As such, the only argument of the learned counsel for the revision petitioner that the accused did not get sufficient opportunity to challenge the subsequent similar application filed under section 311 of the Cr.P.C., is not acceptable. Since the cheque at Ex.P-1 is drawn by the accused, which has been dis-honoured for the reason of insufficiency of funds and since the accused did not pay the cheque amount prior to filing of the complaint by the complainant, the presumption formed in favour of the complainant under Section 139 of the N.I. Act has crystalised in his favour. Resultantly, both the Trial Court as well the Sessions Judge's Court have rightly convicted the accused and upheld the conviction against the accused for the offence punishable under Section 138 of the N.I. Act - the Trial Court has ordered the sentence proportionate to the gravity of the proven guilt against the accused. As such, the impugned judgments do not warrant any interference at the hands of this Court. The Criminal Revision Petition stands dismissed as devoid of any merit.
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