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2022 (8) TMI 156 - Indian Laws
Dishonor of cheque - burden of proof - presumption and estoppels - admissibility of evidences - cross-examination of witnesses - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The Evidence Act also sets out the manner in which the evidence is to be recorded. Chapter-VII relates to the “burden of proof” and “presumption and estoppels”. But these aspects are not discussed here, as the question in the present petition relates to the right to cross-examine the witnesses. Chapter-X comes into the picture as it relates to the “examination of witnesses”. Section 135 provides for “the order of production and examination of witnesses”. Section 136 relates to the “admissibility of evidence” which the Judge is to determine. Section 137 defines “examination-in-chief, cross-examination and re-examination” while Section 138 prescribes the “order of examinations”, i.e., the witnesses are to be examined-in-chief then cross-examined and thereafter, re-examined. It underlines that the examination and cross-examination must relate to the relevant facts. The cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.
Thus, it is clear that both examination and cross-examination must relate to relevant facts. The reason why cross-examination is not confined to the facts to which the witnesses testified is obvious. The witness who is examined-in-chief is from the side of the party who has called him. Therefore, his testimony would be, in-chief relating to the case of that party. But since the opposite side is also required to prove their case, the right has been given to such adverse party to put questions that would be beyond the examination-in-chief - The cross-examination cannot encompass questions that are scandalous or intended to cause humiliation to the witness, on the plea that the questions can go beyond the examination-in-chief. While there is a right to ask questions of a witness to impeach his creditworthiness, it cannot descend to harassment and humiliation of the witness.
The learned Trial Court disallowed the questions being vague and having no relevancy to the transaction in question. In the petition, an attempt has been made to explain why the questions were relevant at page 21. In para 4(q) it is pleaded that since DW-2 had appeared for the respondent, it was necessary to put all transactions which had been done by her being the mother of DW-2 or his other family members “to prove the case of the complainant” - turning to the question of whether two questions have been rightly or wrongly disallowed, it may be seen that the very case of the petitioner is that it was the respondent who had borrowed from him and the cheque in question has been issued by her towards repayment. Whatever be the defence taken by the respondent, the petitioner would have to prove his case.
This Court is of the considered view that there is no perversity in the order of the learned Metropolitan Magistrate disallowing these two questions. Neither has it resulted in any miscarriage of justice - Petition dismissed.