TaxTMI 
TaxTMI 
2023 (5) TMI 1368
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.... way of instant petition, the petitioner has challenged order dated 12.7.2018, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan in Case No. 135/3 of 2013. 2. The impugned order reads as under:- "Exemption application on behalf of accused filed and allowed. At this stage, complainant has made a statement that he has already led preliminary evidence and same may be read as a whole in the main case file and does not want to lead further evidence. In view of this, the evidence of the complainant is closed. Similarly, accused also failed to file application 145 (2) NI Act. Therefore, his right to cross examine the witness is also struck off. Let file be put for statement of ac....
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....accused, he failed to make the payment to the complainants. 8. Resultantly, the accused is facing prosecution for offence under Section 138 of the Act in Complaint No. 79/3 of 2016. 9. In order to analyse the merits of rival contentions raised on behalf of the parties, it is necessary to notice the manner in which the proceedings have taken place before learned trial Court in Complaint Case No. 79/3 of 2016/135/3 of 2013. 10. Record reveals that on 13.12.2013, the statement of one of complainants, Shri Amit Gupta, was recorded by learned trial Court as preliminary evidence on behalf of the complainants and thereafter on the statement of learned counsel for the complainants, the preliminary evidence of complainants was closed. On 2.....
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.... examine the witness had the effect of rendering the statement of witness un-rebutted or in a sense admitted. 13. In a criminal prosecution the accused has a right to cross examine prosecution witness unless such right is waived by him. Section 3 of Indian evidence Act defines evidence as under: "Evidence".--"Evidence" means and includes--(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence. Section 138 of Indian Evidence Act provides for order of examination ....
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.... placed reliance on judgment in Indian Bank Association (supra) and more particularly the directions issued in paragraph 23.4 thereof, which reads as under:- "23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. 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." 16. The complainants cannot draw any benefit from aforesaid directions, issued by Hon'ble Supreme Court in view of the peculiar facts of the case. Vide aforesaid direction a duty has been cast upon the Cou....
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....n Evidence Act for orders of learned trial Court to send the questioned signatures of accused on document Ext.-C-7 relied upon by complainants, with his admitted signatures on the "Vakalatnama" filed in the Court. However, the prayer so made by the accused was also rejected by learned trial Court vide order dated 17.11.2018 and one of the ground for such rejection was the fact that claim of the complainant had not been rebutted by the accused by cross-examining him. It had also weighed with learned trial Court that since there was presumption attached to negotiable instrument, the burden in reverse was on the accused to prove that the cheque was not issued with outstanding legal liability. The order dated 17.11.2018 is under challenge befor....