TaxTMI 
TaxTMI 
2021 (10) TMI 983
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....de impugned order dated 06.04.2019, the ld. Court below has rejected the petition filed by the petitioner u/s 311 Cr.P.C. for allowing them to cross-examine P.W.1. 2. Heard Mr. N. K. Murry, learned counsel for the petitioners and also heard Mr. J. Chopra, learned counsel for the respondent. 3. The factual background, leading to filing of the present petition is adumbrated herein below:- "The petitioner No.2 - Md. Zakir Hussain and petitioner No.3-Smti. Sahnaz Begum is partners of a Firm, in the name & Style of M/S - S.B. Industries (petitioner No.1). The respondent,- M/S Eastern Infratech is also a partnership Firm, represented by one of its partner namely Shri Pawan Kr. Siotia. The petitioners used to purchase goods from the respondent's Firm on different dates since 22.07.2015 to 10.03.2016 and towards liquidation of liabilities, as on 10.03.2016, payable to the respondents the petitioners have issued one cheque bearing No. 859928, dated 03.08.2016, drawn on Punjab National Bank, Hojai Branch, Nagaon, for a sum of Rs. 4,05,269/ to the respondent. The respondent presented the Cheque to its banker, the State bank of India, Fancy Bazar Branch, Guwahati. But, the same retu....
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....r. N.K. Murry, the ld. Counsel for the petitioners has submitted that there was no legally enforceable debt between the parties and that the respondent has misused the cheque and to unfurl the truth, cross-examination of P.W.1 is very much necessary here in this case. Mr. Murry further submitted that the ld. Court below, by dismissing the petition to allow cross-examination of P.W. 1, failed to exercise its judicial discretion under section 311 Cr.P.C. It is further submitted that he has been newly engaged in this case and he is not aware of the conduct of earlier lawyer and that for conduct of lawyer, the petitioner should not suffer, and that only one chance may be afforded to the petitioners to prove their case by allowing them to cross-examine the P.W.1. 6. Per contra, Mr. J. Chopra, the learned counsel for the respondent, vehemently opposed the petition. Taking this Court through the impugned order dated 03.05.2016, the ld. Counsel has submitted that the ld. Court below has given sufficient opportunities to the petitioners to cross-examine the P.W.1, but, the petitioners have failed to avail the same and being left with no other option the ld. Court below has closed the evide....
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....did not appear at the commencement of the trial nor at the time of recording of the evidence of the prosecution witnesses. The accused did not have the aid of the counsel in any real sense, although, he was as much entitled to such aid during the period of trial. The record indicates, as I have already noticed, that the appointment of the learned counsel and her appearance during the last stages of the trial was rather pro forma than active. It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case, to confront the witnesses against him not only on facts but also to discredit the witness by showing that his testimony-in-chief was untrue and unbiased. (Emphasis by us) 14. The purpose of cross-examination of a witness has been succinctly explained by the Constitution Bench of this Court in Kartar Singh v. State of Punjab : (1994) 3 SCC 569, (para 278) "278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examinati....
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.... in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the ''majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary....
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.... complainant withstand the test of legality, propriety and correctness. It is worthwhile to mention here in this context that in A.R. Antuley vs. R.S. Nayak : (1988) 2 SCC 602, a seven Judge Bench of Hon'ble Supreme Court has held that when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be nullity. Reference can also be made to two more decisions of Hon'ble Supreme Court in State of Haryana Vs. State of Punjab: (2004)12 SCC 673, and Rajasthan SRTC Vs. Zakir Hussain: (2005) 7 SCC 447. 12. While rejecting the petition No.4244, filed by the petitioner the ld. Court below has held that the order dated 03.05.2018, by which the evidence of the P.W.1 was closed, has not been challenged by the accused side and further held that it has no power to recall its own order. However, the ld. Court below has held that the accused persons are at liberty to call any witness at the stage of D.W. It is well settled that criminal courts have no power to recall its own order. But, the reason, so assigned by the ld. Court below, for rejecting the prayer in the petition No. 4244 cannot be said to be based on sound principle o....