TaxTMI 
TaxTMI 
2024 (6) TMI 1388
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....on are that the complainant filed a complaint against the accused stating that he had invested more than ` 30.00 lacs in various schemes suggested by the accused. He paid the amount to the accused but subsequently found that the accused had not deposited the amount paid by him. When the complainant demanded the money back, the accused issued a cheque, which was dishonoured with the memo 'exceeds arrangement'. The complainant served a notice upon the accused and the accused failed to pay the amount. Hence, the complaint was filed by him before the learned Trial Court. 3. Learned Trial Court put notice of accusation to the accused. The complainant filed his affidavit and tendered various documents in evidence. Learned Trial Court convicted the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) and sentenced him to undergo simple imprisonment for two years and pay compensation of ` 40.00 lacs. 4. Being aggrieved from the judgment and order the accused preferred an appeal which was decided by learned Sessions Judge, Chamba. (Learned Appellate Court). As per the complainant, the accused was to file an appl....
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....m. 10. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 11. It is undisputed that the accused was not allowed to cross-examine the witnesses. The complainant appeared as (CW1) on 25.1.2022 and tendered his affidavit and documents in the evidence. There is nothing on record to show that an opportunity for cross-examination was afforded to the accused. Thus, the learned Appellate Court had rightly held that the opportunity of cross-examination was not afforded to the accused. 12. It was submitted that the accused did not file any application under Section 145(2) of the NI Act, which was required as per the judgment of the Hon'ble Supreme Court in Indian Bank Assn. v. Union of India, 2014:INSC:44 : (2014) 5 SCC 590. Heavy reliance was placed upon the following directions issued by Hon'ble Supreme Court: - "23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during the trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accus....
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....in-chief. Direction of re-examination. -The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. Hence, the statement of a witness without affording a right to cross-examine and re-examine as per the above provision of law cannot be considered to be complete. The only requirement is that the party has to be afforded fair chance to cross-examine the witness. Once, the party fails to avail such a chance, he cannot subsequently challenge the statement made in the examination in chief." 15. Since, in the present case the directions in Indian Bank (supra) were not followed; hence no shelter can be taken behind them. 16. It was laid down by the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Nusli Neville Wadia, 2007:INSC:1293 : (2008) 3 SCC 279 that the cross-examination of a witness is a part of natural justice and has to be permitted even if not provided in the statute. It was observed:- 45. If some facts are to be proved by the landlord, indisputably th....
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.... AIR 2010 SC 142] and State of U.P. v. Saroj Kumar Sinha [2010:INSC:77 : (2010) 2 SCC 772 : (2010) 1 SCC (L&S) 675 : AIR 2010 SC 3131] .) 25. In Lakshman Exports Ltd. v. CCE [(2005) 10 SCC 634], this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of accounts and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem. 26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia [2007:INSC:1293 : (2008) 3 SCC 279: (2008) 1 SCC (Civ) 850 : AIR 2008 SC 876], this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45) "45. If some facts are to be proved by the landlord, indisputably the occupant should get....
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....use against an action proposed to be taken by the Government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination. 29. In Rajiv Arora v. Union of India [2008:INSC:990 : (2008) 15 SCC 306: (2009) 3 SCC (Cri) 977 : AIR 2009 SC 1100] this Court held : (SCC p. 310, paras 13-14) "13. Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice d....
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....g the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int'l L. 481 (1994). The founding generation's immediate source of the concept, however, was the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses give testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768). Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other officials examined suspects and witnesses before trial. These examinations were sometimes read in court in lieu of live testimony, a practice that "occasioned frequent demands by the prisoner to have his 'accusers,' i.e. the witnesses against him, brought before him face to face." 1 J. Stephen, History of the Criminal Law of England 326 (1883). In some cases, these demands were refused. See 9 W. Holdsworth, History of English Law 216-217, 228 (3d ed. 1944); e.g., Raleigh's Case, 2 How. ....
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....E.g., 13 Car. 2, c. 1, § 5 (1661); see 1 Hale, supra, at 306. Courts, meanwhile, developed relatively strict rules of unavailability, admitting examinations only if the witness was demonstrably unable to testify in person. See Lord Morley's Case, 6 How. St. Tr. 769, 770-771 (H. L. 1666); 2 Hale, supra, at 284; 1 Stephen, supra, at 358. Several authorities also stated that a suspect's confession could be admitted only against himself, and not against others he implicated. See 2 W. Hawkins, Pleas of the Crown, ch. 46, § 3, pp. 603-604 (T. Leach 6th ed. 1787); 1 Hale, supra, at 585, n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791); cf. Tong's Case, Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (treason). But see King v. Westbeer, 1 Leach 12, 168 Eng. Rep. 108, 109 (1739). One recurring question was whether the admissibility of an unavailable witness's pre-trial examination depended on whether the defendant had an opportunity to cross- examine him. In 1696, the Court of King's Bench answered this question in the affirmative, in the widely reported misdemeanor libel case of King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584. The court ruled that, e....
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....d by the State Constitution was that "prosecutions be carried on to the conviction of the accused, by witnesses confronted by him, and subjected to his personal examination." Ibid. Many other decisions are to the same effect. Some early cases went so far as to hold that prior testimony was inadmissible in criminal cases even if the accused had a previous opportunity to cross-examine. See Finn v. Commonwealth, 26 Va. 701, 708 (1827); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807) (per curiam). Most courts rejected that view, but only after reaffirming that admissibility depended on a prior opportunity for cross-examination. See United States v. Macomb, 26 F. Cas. 1132, 1133 (No. 15,702) (CC Ill. 1851); State v. Houser, 26Mo. 431, 435-436(1858); Kendrick v. State, 29Tenn. 479, 485-488(1850); Bostick v. State, 22Tenn. 344, 345-346(1842); Commonwealth v. Richards, 35 Mass. 434, 437 (1837); State v. Hill, 20 S. C. L. 607, 608-610 (App. 1835); Johnston v. State, 10 Tenn. 58, 59 (Err. & App. 1821). Nineteenth-century treatises confirm the rule. See 1 J. Bishop, Criminal Procedure § 1093, p. 689 (2d ed. 1872); T. Cooley, Constitutional Limitations *318. The hist....
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....say exception at common law). Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. See Woodcock, supra, at 501-504, 168 Eng. Rep., at 353- 354; Reason, supra, at 24-38; Peake, supra, at 64; cf. Radbourne, supra, at 460-462, 168 Eng. Rep., at 332-333. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.] Most of the hearsay exceptions covered statements that by their nature were not testimonials-for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony. Cf. Lilly v. Virginia, 527 U. S. 116, 134 (1999) (plurality opinion) ("[A]ccomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule"). [ We cannot agree with THE CHIEF JUSTICE that the fact "[t]hat a statement might be testimonial does nothing to undermine the wisdom of one of these [hearsay] exceptions." Post, at 74. Involvement of government office....
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....ant had examined the witness. Lilly v. Virginia, supra, excluded testimonial statements that the defendant had had no opportunity to test by cross- examination. And Bourjaily v. United States, 483 U. S. 171, 181-184 (1987), admitted statements made unwittingly to a Federal Bureau of Investigation informant after applying a more general test that did not make prior cross-examination an indispensable requirement. [ One case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial is White v. Illinois, 502 U. S. 346 (1992), which involved, inter alia, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Id., at 349-351. It is questionable whether testimonial statements would ever have been admissible on that ground in 1791; to the extent, the hearsay exception for spontaneous declarations existed at all, it required that the statements be made "immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive anything for her advantage." Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K. B. 1693). In any case, the only question pre....
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.... cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U. S. 149, 162 (1970). It is therefore irrelevant that the reliability of some out-of- court statements "'cannot be replicated, even if the declarant testifies to the same matters in court.'" Post, at 74 (quoting United States v. Inadi, 475 U. S. 387, 395 (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U. S. 409, 414 (1985).)] In this case, the State admitted Sylvia's testimonial statement against the petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the....
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....llegality. Therefore, we have no hesitation in allowing this appeal and setting aside the decisions of all three courts with further direction that Complaint Case No. 244 of 2019 shall stand restored to the file of the trial court. The trial court is directed to permit the appellant to cross-examine the respondent and then take the proceedings to a logical conclusion. With these observations, the appeal is allowed." (Emphasis supplied) 20. Even this Court held in Ashwani Kumar Sharma Vs. M/s. Himachal Fabrics, Cr.MMO No. 540 of 2018, decided on 19.5.2023 that the right of cross-examination cannot be denied because the accused failed to file an application under Section 145(2) of the Act. It was observed:- "12. The above option was exercised by the complainants on 12.7.2018 for the first time. Indisputably, the accused did not get any opportunity to cross-examine the complainant Amit Gupta on the statement recorded as preliminary evidence. The right of the accused to cross- examine was closed on the ground that he had failed to file an application under Section 145 (2) of the Act. The closure of the right to cross-examine the witness had the effect of rendering the st....