2023 (8) TMI 1497

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....o. 561/OA/NIA/2016/C allowing the applications preferred by the accused for the purpose of cross examination of PW1. 2. Petitioner is complainant. Complaints are filed for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ("NI Act" for short). Complainant had alleged that Regular Civil Suit  no.72/2011/C was filed by the complainant against the accused/respondent. It was mutually settled. Consent decree was passed on 22.7.2015 as per the consent terms filed by the parties. In terms of the consent decree dated 22.7.2015 accused had undertaken to pay to the complainant Rs. 5,00,000/-and Rs. 90,000/-towards discharge of the legally enforceable debt and liability. In view of the consent terms accused issued ch....

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....f of the complainant was recorded on 29.9.2022. The Advocate for accused was not present. The Court recorded that accused has not made application to cross examine the complainant. Even otherwise the accused is not prepared to cross examine the complainant on the ground that his Advocate is before another Court. Section 309 of Cr.P.C. provides that the fact that pleader of the party is before another Court is not ground for adjournment. Cross was closed on 29.9.2022. The respondent preferred application to recall complainant on 31.10.2022. The application was opposed by complainant by filing reply. The respondent preferred another application under Section 145(2) of the NI Act. The said application was opposed by complainant by filing reply....

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....s to do so accused cannot  avail the said facilities. 6. Learned Advocate for the petitioner relied upon the decision of this Court in Criminal Writ Petition No. 838/2021(Filing) in the case of Apolonius Francisco Luis Vs Sahajanand Investments Pvt. Ltd in dated 17.9.2022. 7. Learned Advocate for the respondent submitted that there is no infirmity in the impugned order. The accused must be be permitted to cross examine the complainant. Opportunity to cross examine cannot be denied on flimsy grounds. Consent decree dated 22.7.2015 provides that amount of Rs. 5,00,000/-is to be paid within one year. Cheque was presented prior to one year. Learned advocate for the respondent relied upon the decision of this Court in case of Rakesh S....

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....tions. The Court had observed that the accused was not aware about the filing of an application for cross examination on the date of completion of examination in chief of PW1. Advocate was not present. Even on the next date Advocate was not present. Accused was present in person and his statement was recorded. Subsequently on 31.10.2022 accused was represented by advocate under Free Legal Aid and the application was preferred for recalling the witnesses. Admittedly no such application for cross examination was filed on the date when examination in chief was over. However, it cannot be  ignored that at the relevant time accused was not represented by advocate. Evidence recorded in examination in chief has to be tested by granting opport....