Mukesh Kumar Dewangan Vs Narendra Kumar Jain — Cheque Dishonour | Chhattisgarh HC (2024)

Mukesh Kumar Dewangan Vs Narendra Kumar Jain — Cheque Dishonour | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

Petition allowed; order dated 09.07.2024 of the revisional Court and order dated 12.01.2024 of the trial Court set aside; trial Court directed, as a last opportunity, to permit the petitioner to produce defence evidence and cross-examine the complainant, subject to cost of Rs.2,000/-.

Issue for consideration

Whether the petitioner/accused should be permitted to lead defence evidence and to cross-examine the complainant notwithstanding the trial Court's order dated 12.01.2024 closing the evidence, as affirmed by the revisional Court on 09.07.2024.

Court's answer

Considering the facts of the case, the submissions of learned counsel, the pleadings in the petition and the provision of Section 311 CrPC, and in order to bring on record the correct facts and circumstances and for just and proper disposal of the trial, it was appropriate to give the petitioner one opportunity to lead defence evidence and to cross-examine the complainant.

Ratio / Principle

The CrMP is allowed; the revisional Court's order dated 09.07.2024 (Annexure P-1) and the trial Court's order dated 12.01.2024 are set aside, and the trial Court is directed, as a last opportunity, to permit the petitioner to produce defence evidence and cross-examine the complainant, subject to cost of Rs.2,000/-.

Detailed headnote1 paragraphs

Criminal miscellaneous petition under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 allowed. In a Section 138 Negotiable Instruments Act complaint, the complainant having been examined under Section 145 N.I. Act, the trial Court closed the evidence by order dated 12.01.2024 without affording the accused any opportunity to produce evidence, and the Additional Sessions Judge (F.T.C.), Durg dismissed the accused's revision by order dated 09.07.2024. Holding that, having regard to Section 311 CrPC and for a just and proper disposal of the trial, the accused deserved one opportunity to lead defence evidence and to cross-examine the complainant, the High Court set aside both orders and directed the trial Court, as a last opportunity, to permit production of defence evidence and cross-examination, subject to cost of Rs.2,000/-.

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2024:CGHC:31339

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRMP No. 2233 of 2024

Mukesh Kumar Dewangan S/o Natthulal Dewangan Aged About 55 Years R/o House No. 185/4, Near Durga Mandir, Kalapara College Road, Rajnandgaon, Tahsil And District Rajnandgaon (C.G.)

... Petitioner

versus

Narendra Kumar Jain S/o Komalchand Jain Aged About 43 Years R/o House No. C-1, Rishabh South City, Potiyakala, Durg, P.S. Pulgaon, Tahsil And District Durg (C.G.)

... Respondent

For Petitioner : Mr. Pawan Kumar Kashyap, Advocate

Hon’ble Shri Justice Arvind Kumar Verma Order on Board

20/08/2024

Heard on admission.

Admit.

With the consent of the counsel for the petitioner, matter is heard finally.

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The present CrMP has been preferred by the petitioner under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 for quashment/setting aside the impugned order dated 09.07.2024 (Annexure P-1).

Brief facts of this case is that, complainant/respondent has filed complaint case against the petitioner/accused before the learned trial Court for offence under Section 138 of the Negotiable Instruments Act, which was registered and notice was issued to the petitioner. Subsequently, petitioner has been released on bail. Complainant/respondent has given statement under Section 145 of N.I. Act on 17.11.2023 and, thereafter, case was fixed for his crossexamination. However, vide order dated 12.01.2024, learned trial Court has closed the evidence without giving any opportunity to produce the evidence. Aggrieved by said order dated 12.01.2024, the petitioner filed the revision (Criminal Revision No. 77/2024) before learned Additional Sessions Judge (F.T.C.), District Durg Chhattisgarh. However, vide impugned order dated 09.07.2024 (Annexure P-1), learned Sessions Judge dismissed the revision of the petitioner and affirmed/confirmed the order dated 12.01.2024 passed by the trial Court. Hence, this petition.

Learned counsel appearing for the petitioner contended that the petitioner has filed an application under Section 317 of Cr.P.C. for non-appearance before the trial Court on 12.01.2024, but same has not been considered by the trial Court. He further submits that if the

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proceeding is still going on, the petitioner/accused should be given opportunity to produce the evidence for his defense and to crossexamine the complainant/respondent, however trial Court as well as learned Revisional Court have not provided any opportunity to the petitioner to produce the evidence and to cross-examine the complainant/respondent. Hence, impugned order dated 09.07.2024 (Annexure P-1) is completely illegal, erroneous and contrary to the law and, therefore, liable to be set-aside/quash.

I have heard learned counsel for the petitioner and perused the order passed by the trial Court as well as learned Revisional Court and other related documents/material placed on record.

Trial Court has vide power under Section 311 CrPC to 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 at any time. Section 311 of Cr.PC reads as under :-

“311. Power to summon material witness, or examine person present. -- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine 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.”

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Considering facts of the case, submissions of learned counsel for the petitioner, pleadings made in the petition, provision of Section 311 CrPC and in order to bring on record the correct facts and circumstances and also for just and proper disposal of the trial, it would be appropriate to give one opportunity to the petitioner to lead the evidence for his defence and to cross-examine the complainant/respondent.

Accordingly, the instant CrMP is allowed . Impugned order dated 09.07.2024 (Annexure P-1) passed by the revisional Court as well as order dated 12.01.2024 passed by the learned trial Court is hereby set aside. The concerned trial Court is directed as a last opportunity permit the petitioner to produce the evidence for his defence and to cross-examine the complainant/respondent, subject to cost of Rs.2,000/-.

In view of the above direction, the instant petition stands disposed of.

Sd/- (Arvind Kumar Verma) Judge

Vasant VASANTKUMAR Digitally signedby VASANTKUMAR