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TMI Blog2024 (6) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... t against the accused stating that he had invested more than ` 30.00 lacs in various schemes suggested by the accused. He paid the amount to the accused but subsequently found that the accused had not deposited the amount paid by him. When the complainant demanded the money back, the accused issued a cheque, which was dishonoured with the memo 'exceeds arrangement'. The complainant served a notice upon the accused and the accused failed to pay the amount. Hence, the complaint was filed by him before the learned Trial Court. 3. Learned Trial Court put notice of accusation to the accused. The complainant filed his affidavit and tendered various documents in evidence. Learned Trial Court convicted the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) and sentenced him to undergo simple imprisonment for two years and pay compensation of ` 40.00 lacs. 4. Being aggrieved from the judgment and order the accused preferred an appeal which was decided by learned Sessions Judge, Chamba. (Learned Appellate Court). As per the complainant, the accused was to file an application under Section 145(2) of the NI Act for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns at the bar and have gone through the records carefully. 11. It is undisputed that the accused was not allowed to cross-examine the witnesses. The complainant appeared as (CW1) on 25.1.2022 and tendered his affidavit and documents in the evidence. There is nothing on record to show that an opportunity for cross-examination was afforded to the accused. Thus, the learned Appellate Court had rightly held that the opportunity of cross-examination was not afforded to the accused. 12. It was submitted that the accused did not file any application under Section 145(2) of the NI Act, which was required as per the judgment of the Hon'ble Supreme Court in Indian Bank Assn. v. Union of India, 2014:INSC:44 : (2014) 5 SCC 590. Heavy reliance was placed upon the following directions issued by Hon'ble Supreme Court: - "23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during the trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to in cross-examination; and, if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. Hence, the statement of a witness without affording a right to cross-examine and re-examine as per the above provision of law cannot be considered to be complete. The only requirement is that the party has to be afforded fair chance to cross-examine the witness. Once, the party fails to avail such a chance, he cannot subsequently challenge the statement made in the examination in chief." 15. Since, in the present case the directions in Indian Bank (supra) were not followed; hence no shelter can be taken behind them. 16. It was laid down by the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Nusli Neville Wadia, 2007:INSC:1293 : (2008) 3 SCC 279 that the cross-examination of a witness is a part of natural justice and has to be permitted even if not provided in the statute. It was observed:- 45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. v. CCE [(2005) 10 SCC 634], this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of accounts and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem. 26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia [2007:INSC:1293 : (2008) 3 SCC 279: (2008) 1 SCC (Civ) 850 : AIR 2008 SC 876], this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45) "45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination. 29. In Rajiv Arora v. Union of India [2008:INSC:990 : (2008) 15 SCC 306: (2009) 3 SCC (Cri) 977 : AIR 2009 SC 1100] this Court held : (SCC p. 310, paras 13-14) "13. Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. 14. The High Court in its impugned judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il law in regard to the manner in which witnesses give testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768). Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other officials examined suspects and witnesses before trial. These examinations were sometimes read in court in lieu of live testimony, a practice that "occasioned frequent demands by the prisoner to have his 'accusers,' i.e. the witnesses against him, brought before him face to face." 1 J. Stephen, History of the Criminal Law of England 326 (1883). In some cases, these demands were refused. See 9 W. Holdsworth, History of English Law 216-217, 228 (3d ed. 1944); e.g., Raleigh's Case, 2 How. St. Tr. 1, 15-16, 24 (1603); Throckmorton's Case, 1 How. St. Tr. 869, 875-876 (1554); cf. Lilburn's Case, 3 How. St. Tr. 1315, 1318-1322, 1329 (Star Chamber 1637). Pre-trial examinations became routine under two statutes passed during the reign of Queen Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. 1666); 2 Hale, supra, at 284; 1 Stephen, supra, at 358. Several authorities also stated that a suspect's confession could be admitted only against himself, and not against others he implicated. See 2 W. Hawkins, Pleas of the Crown, ch. 46, § 3, pp. 603-604 (T. Leach 6th ed. 1787); 1 Hale, supra, at 585, n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791); cf. Tong's Case, Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (treason). But see King v. Westbeer, 1 Leach 12, 168 Eng. Rep. 108, 109 (1739). One recurring question was whether the admissibility of an unavailable witness's pre-trial examination depended on whether the defendant had an opportunity to cross- examine him. In 1696, the Court of King's Bench answered this question in the affirmative, in the widely reported misdemeanor libel case of King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584. The court ruled that, even though a witness was dead, his examination was not admissible where "the defendant not being present when [it was] taken before the mayor had lost the benefit of a cross- examination." Id., at 165, 87 Eng. Rep., at 585. The question was also debated at length during the infamous proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in criminal cases even if the accused had a previous opportunity to cross-examine. See Finn v. Commonwealth, 26 Va. 701, 708 (1827); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807) (per curiam). Most courts rejected that view, but only after reaffirming that admissibility depended on a prior opportunity for cross-examination. See United States v. Macomb, 26 F. Cas. 1132, 1133 (No. 15,702) (CC Ill. 1851); State v. Houser, 26Mo. 431, 435-436(1858); Kendrick v. State, 29Tenn. 479, 485-488(1850); Bostick v. State, 22Tenn. 344, 345-346(1842); Commonwealth v. Richards, 35 Mass. 434, 437 (1837); State v. Hill, 20 S. C. L. 607, 608-610 (App. 1835); Johnston v. State, 10 Tenn. 58, 59 (Err. & App. 1821). Nineteenth-century treatises confirm the rule. See 1 J. Bishop, Criminal Procedure § 1093, p. 689 (2d ed. 1872); T. Cooley, Constitutional Limitations *318. The historical record also supports a second proposition: that the Framers would not have allowed the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination. The text of the Sixth Amendment does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.] Most of the hearsay exceptions covered statements that by their nature were not testimonials-for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony. Cf. Lilly v. Virginia, 527 U. S. 116, 134 (1999) (plurality opinion) ("[A]ccomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule"). [ We cannot agree with THE CHIEF JUSTICE that the fact "[t]hat a statement might be testimonial does nothing to undermine the wisdom of one of these [hearsay] exceptions." Post, at 74. Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse-a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat did not make prior cross-examination an indispensable requirement. [ One case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial is White v. Illinois, 502 U. S. 346 (1992), which involved, inter alia, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Id., at 349-351. It is questionable whether testimonial statements would ever have been admissible on that ground in 1791; to the extent, the hearsay exception for spontaneous declarations existed at all, it required that the statements be made "immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive anything for her advantage." Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K. B. 1693). In any case, the only question presented in White was whether the Confrontation Clause imposed an unavailability requirement on the types of hearsay at issue. See 502 U. S., at 348-349. The holding did not address the question whether certain of the statements, because they were testimonial, had to be excluded even if the witness was unavailable. We "[took] as a given that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t.'" Post, at 74 (quoting United States v. Inadi, 475 U. S. 387, 395 (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U. S. 409, 414 (1985).)] In this case, the State admitted Sylvia's testimonial statement against the petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. Indeed, cross-examination is a tool used to flesh out the truth, not an empty procedure. See Kentucky v. Stincer, 482 U. S. 730, 737 (1987) ("The right to cross-examination, protected by the Confrontation Clause, thus is essentially a 'functional right designed to promote reliability in the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations, the appeal is allowed." (Emphasis supplied) 20. Even this Court held in Ashwani Kumar Sharma Vs. M/s. Himachal Fabrics, Cr.MMO No. 540 of 2018, decided on 19.5.2023 that the right of cross-examination cannot be denied because the accused failed to file an application under Section 145(2) of the Act. It was observed:- "12. The above option was exercised by the complainants on 12.7.2018 for the first time. Indisputably, the accused did not get any opportunity to cross-examine the complainant Amit Gupta on the statement recorded as preliminary evidence. The right of the accused to cross- examine was closed on the ground that he had failed to file an application under Section 145 (2) of the Act. The closure of the right to cross-examine the witness had the effect of rendering the statement of the witness un- rebutted or in a sense admitted." 21. In the present case, the complainant relied upon an affidavit prepared by him out of the Court in the absence of the complainant. He tendered the affidavit without allowing the accused to cross-examine him. This amounted to the admission of the evidence recorded outside the Court not tested by the cross-examination reminding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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