2024 (6) TMI 704 - HC - Indian Laws

Cheque dishonour conviction overturned due to improper cross-examination under Section 138 NI Act

The HC allowed a criminal revision petition in a cheque dishonour case under Section 138 NI Act. The accused's cheque was dishonoured due to signature ... Dishonour of Cheque - cheque dishonoured for variance in signature - failure to cross examine witness - Section 391 of Cr.P.C. - HELD THAT:- In the complaint and in the proof affidavit there is no reference to the cheque drawn in Punjab National Bank bearing Cheque No.169684 dated 20.11.2020 for a sum of Rs.20,00,000/- issued by the respondent's mother and how the cheque, reached the petitioner's hand needs explanation, for which, necessarily the petitioner has to examine the respondent's mother as well as to cross examine the respondent. The petitioner failed to cross examine the respondent before the Trial Court will not be a reason to come to a conclusion that there is no cross examination required and the petitioner had committed the offence. It is to be seen that the evidence includes examination-in-chief, cross examination, re-examination and the evidence would be complete when it is tested by cross examination. In this case, admittedly the respondent/complainant was not cross examined. Further, in a case under Section 138 NI Act, statutory presumption against the accused has to be dislodged by way of materials and cross examination. In the present case, the case is at the appellate stage and hence, Section 391 Cr.P.C. had been invoked by the petitioner. In the case of Rambhau vs. State of Maharashtra [2001 (4) TMI 937 - SUPREME COURT], the power under Section 391 Cr.P.C. had been elaborated and the Apex Court held that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court and the ultimate object of judicial administrative is to secure ends of justice, the Court exists for rendering justice to the people. The Apex Court further held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. The respondent/complainant was not cross examined, further in the complaint and in the proof affidavit the transaction between the petitioner and the respondent's mother reiterated and Ex.P9 marked, this Court finds that cross examination of the respondent and examination of respondent's mother Mrs.D.Kuzhalamani as additional witness is necessary - the criminal revision petition stands allowed. Issues:Petitioner's request to adduce additional evidence under Section 391 of Cr.P.C. for a cheque issued by respondent's mother, failure to cross-examine respondent, need for examination of respondent's mother, and the Lower Appellate Court's dismissal of the petition.Analysis:The petitioner, convicted in STC.No.7235 of 2022, filed an appeal in Crl.A.No.344 of 2023 seeking to adduce additional evidence of a cheque issued by respondent's mother, Mrs. D.Kuzhalamani, for Rs.20,00,000. The petitioner claimed the amount was transferred through RTGS after he initiated proceedings. The Lower Appellate Court dismissed the petition under Section 391 of Cr.P.C., prompting the present criminal revision case before the High Court.The petitioner argued that the respondent's mother transferred Rs.20,00,000 through RTGS, with the balance paid in cash, as per bank statements and evidence. The respondent's case lacked clarity on the cheque issued, and the petitioner sought to examine Mrs. Kuzhalamani and cross-examine the respondent to establish the defense. The petitioner invoked Section 311 Cr.P.C. to ensure a complete and fair trial, emphasizing the importance of cross-examination in a case under Section 138 of the Negotiable Instruments Act.Citing precedents like Zahira Habibulla H. Sheikh vs. State of Gujarat and Brigadier Sukhjeet Singh vs. State of Uttar Pradesh, the petitioner argued for the necessity of additional evidence to secure justice. The Lower Appellate Court's dismissal was challenged on grounds of not permitting witness examination to clarify the cheque issue and transaction details, crucial for the defense.The respondent contended that the petitioner failed to respond to statutory notices and did not cross-examine witnesses during trial, raising doubts on the petitioner's sincerity in defense. The respondent highlighted discrepancies in the petitioner's claims regarding the receipt of money and the respondent's mother's health issues affecting the cheque's validity. The respondent opposed further delays through additional evidence and supported the Lower Appellate Court's decision.The High Court, after considering submissions and evidence, found merit in the petitioner's claim for additional evidence. Noting the absence of cross-examination of the respondent and the need to clarify transaction details with Mrs. Kuzhalamani, the Court set aside the Lower Appellate Court's order. The High Court allowed the petitioner to recall witnesses for cross-examination and examine Mrs. Kuzhalamani within three months to ensure a fair trial and proper disposal of the appeal.In conclusion, the criminal revision petition was allowed, permitting the petitioner to present additional evidence and conduct necessary examinations for a just resolution of the case within the specified timeframe.