TMI Blog2021 (10) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India - In the case in hand, on the relevant date i.e. on 03.05.2018, the petitioner remained absent in the court and his counsel also remained absent though he has filed hazira. Thus, the petitioner remained unrepresented on that day. Therefore, the impugned order, closing the evidence of P.W.1, behind the back of the petitioners and also his counsel, is denial of fair hearing, as it has infringed their right to fair trial. The impugned order dated 03.05.2018, passed by which the ld. Court below closing the evidence of P.W.1, behind the back of the petitioner and his counsel, and subsequent impugned order dated 06.04.2018, by which the ld. Court below, after hearing ld. Advocates of both sides declined to invoke its jurisdiction under section 311 Cr.P.C, to allow the petitioners to cross-examine P.W.1 and other listed witnesses of the complainant withstand the test of legality, propriety and correctness - Here in this case, it appears from the impugned order dated 03.05.2018, that in a span of almost one year, ample opportunities were afforded to the petitioners. But, the petitioners have failed to avail the same. They have failed to assign any reason, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same returned dishonored vide Cheque returning memo, dated 30.08.2016, with the endorsement Fund Insufficient . The respondent then issued demand Notice to the petitioners to pay the Cheque amount on 03.09.2016, through his Advocate, within 15 days from the date of receipt of notice. But, the petitioners failed to pay the amount in spite of receipt of notice. Then the respondent has lodged a complaint before the ld. court below under section 138 N.I. Act. The ld. Court below, then, issued process to the petitioners after taking cognizance of the offence. The petitioners have entered appearance before the ld. Court below and contested the case. The ld. Court below then explained the particulars of offence under section 138 N.I. Act to the petitioners to which the petitioners pleaded not guilty. During trial the respondent has submitted his evidence-in-affidavit. The ld. Court below then fixed the case for cross-examination of the respondent (P.W.1). But, vide impugned order dated 03.05.2018, the ld. Court below has closed the cross-examination of (P.W.1). Thereafter, on 06.08.2018, the newly engaged lawyer of the petitioners filed a petition, being petition No. 4244/2018, befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court below has closed the evidence of P.W.1. It is further submitted that section 311 Cr.P.C. cannot be used as a delaying tactics. Mr. Chopra has referred one case law Shivnarayan Shakya Vs. State of M.P. (M. Cr. C. No. 13215/2015), and submitted that the petitioners have failed to furnish any reason as to why it has failed to cross-examine the witness. In support of his submission Mr. Chopra has submitted another case law Criminal Revision Case No. 206 of 2012 of Andhra Pradesh High Court . It is further submitted that the ld. Court below has rightly rejected the petition No. 4244/2018, vide order dated 06.08.2019 , and as such no interference of this court is warranted and therefore, it is contended to dismiss the petition. 7. Having heard the submission of the ld. Advocates of both side I have gone through the impugned orders and the documents placed on record and also gone through the case laws referred by the ld. Counsel for the respondent and I find sufficient force in his submission. The ld. Court below, in the impugned order dated 03.05.2018, has noted that the case was posted for cross-examination of P.W.1 on 30.05.2017, and since then ample opportunities were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character. 15. The aforesaid view is reiterated by this Court in Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104 , wherein it is observed: (para 24), 24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 9. What transpired from the above discussion is that right to cross-examination is a part of right to fair trial, which, every person has in the spirit of the right to life and personal liberty as enshrined in Article 21 of the Constitution of India. In the case in hand, on the relevant date i.e. on 03.05.2018, the petitioner remained absent in the court and his counsel also remained absent though he has filed hazira. Thus, the petitioner remained unrepresented on that day. Therefore, the impugned order, closing the evidence of P.W.1, behind the back of the petitioners and also his counsel, is denial of fair hearing, as it has infringe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rejecting the prayer in the petition No. 4244 cannot be said to be based on sound principle of law, in view of discussion and finding in forgoing para. 13. Section 311 Cr.P.C. deals with power to summon material witness, or examined persons present. It provides that any court may, at any stage of enquiry, trial or other proceeding under this code, summon any person as a witness, or examine any persons in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 14. A bare perusal of the section reveals that when the conditions under the sections are satisfied the court can call a witness not only on the motion of either of the prosecution or the defence, but also it can do so on its own motion. In Mohanlal Shyamji Soni Vs. Union of India, (1991) Crl. J.J. 152 (SC), while dealing with the power to under section 311 Cr.P.C., Hon ble Supreme Court has held that the power of Court to re-call any witness or witnesses already examined or to summon any witness can be inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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