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Judgment
SURYA PARTAP SINGH, J.
The petition has been filed by the petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023. By virtue of present petition, the petitioner has sought the quashing of order dated 03.01.2026, hereinafter being referred to as ‘impugned order’ only, passed by the Court of learned Judicial Magistrate First Class Sonipat, hereinafter being referred to as ‘trial Court’ only.
In nut-shell, the facts emerging from record are that, that the petitioner is facing a trial, as an accused, for the commission of offence punishable under Section 138 of Negotiable Instruments Act, hereinafter being referred to as ‘NI Act’ only, bearing complaint No.NACT/486/2020, titled as ‘Rajesh Chauhan V/s Vinod Kumar’.
In the abovementioned trial, on 01.06.2023 the learned trial Court closed the opportunity of petitioner to cross-examine the complainant, who was present in the Court as witness. Thereafter, on 09.01.2024 the petitioner moved an application under Section 311 CrPC, and sought permission to recall the complainant, for cross-examination. However, the abovesaid application has been dismissed by the learned trial Court, by virtue of order dated 03.01.2026.
Aggrieved of the abovementioned order, the petitioner has approached this Court by virtue of present petition.
Heard.
It has been contended by learned counsel for the petitioner that valuable rights of the petitioner are involved in the present case, as he is facing a trial as an accused. According to learned counsel for the petitioner, in view of defective approach adopted by the learned trial Court, while denying opportunity for cross-examination of complainant, miscarriage of justice is bould to take place. As per learned counsel for the petitioner, complainant is the most material witness and in the absence of his cross-examination, the valuable right of defence available to the petitioner will stand defeated.
It has also been contended by learned counsel for the petitioner that in order to protect his right of defence, the petitioner filed an application under Section 311 CrPC, wherein a prayer was made to recall the complainant for cross-examination, by the petitioner. As per learned counsel for the petitioner, by adopting a faulty approach, the learned trial Court has dismissed the same, primarily on the ground that order dated 01.06.2023, whereby the opportunity of cross-examination of the complainant was closed, was not challenged before the higher Court and secondly, because the case was already more than five-year-old. With regard to above, it has been contended by learned counsel for the petitioner that squeezing the right of defence merely on the ground that case is old cannot be a ground to deny right of defence to the accused (petitioner herein).
While referring to the principles of law laid down by this Court in the cases of ‘Jaswant Singh V/s Gurmeet Singh & Anr.’ CRM-M-28247-2024, ‘Pardeep Kumar V/s Manjit Basra & Anr.’ CRM-M-40961-2025 and ‘Sunny Kumar @Sunny V/s Arvinder Pal Singh’ CRM-M-48623-2025, it has been contended by learned counsel for the petitioner that the petitioner has a very strong case and the impugned order deserves to be set aside. Hence the present petition.
The record has been perused carefully.
A perusal of record shows that on 01.06.2023, when opportunity to cross-examine the complainant was denied to the petitioner, following order was passed by the learned trial Court:-
“Complainant is present for cross-examination. However, in the last order dated 28.3.2023 it was ordered that the right to cross-examine the complainant would be closed by the court order if the cross-examination of complainant is not concluded, yet, again an adjournment has been sought. In view of order dated 28.3.2023, the right of the accused to cross-examine the complainant stands closed by court order. Now, case is adjourned to 28.8.2023 for defence evidence, if any and arguments.”
Since in the abovementioned order, there is reference of order dated 28.03.2023, it shall be appropriate to look into the order dated 28.03.2023, which reads as under:-
“Complainant is present for his cross-examination, but the accused sought an adjournment as his counsel is facing today and is unavailable. Heard and allowed. Now, the case is adjourned to 1.06.2023 for cross-examination of the complainant. Further, it is made clear that no further opportunity shall be granted to cross-examine the complainant and if accused does not cross-examine the complainant, then his right to cross-examine shall be deemed closed by court order.”
Before abovementioned order, on 04.11.2022, following order was passed by the learned trial Court:-
“Notice of accusation framed and served on the accused. Plea of defence of accused recorded separately. Learned counsel for the accused orally seeks an opportunity for cross-examination of complainant which is not opposed by counsel for the complainant. As, the plea recorded discloses a specific defence as to existence of liability sufficient to entitle the accused to test the veracity of the complainant’s case at the anvil of cross-examination. Accordingly the accused is allowed to cross-examine the complainant. List the matter now on 28.03.2023 for cross-examination of complainant.
Since the case is being tried summarily, it is made clear that not more than two effective opportunities would be given to the accused for cross-examination. The complainant shall remain present in the Court for cross-examination on the date fixed.”
A careful perusal of abovementioned three orders shows that it was not that in a hurried manner the opportunity of petitioner to cross-examine the complainant was closed by the learned trial Court. In fact, the abovementioned order shows that first the warning was issued to the petitioner and then on next date, after giving opportunity, the right of cross-examination of complainant, by the petitioner, was closed. The abovementioned order also shows that mala fide on the part of petitioner was apparent when despite opportunity and warning, he failed to cross-examine the complainant.
With regard to abovementioned order, it is also relevant to mention here that it shall be appropriate to look into the conduct, in which the petitioner has been participating in the trial. The chronology of events, which unfolded in the present case, shows that on 28.03.2023, a warning was given to the petitioner to avail the opportunity of cross-examination of complainant, but he did not bother and thereafter, on two occasions, when the case was fixed for defence evidence, the petitioner did not bother to move any application under Section 311 CrPC. The abovementioned conduct of the petiotner shows that it was not bona fide.
As far as the impugned order is concerned, a bare perusal of same shows that the learned trial Court while elaborately discussing the abovementioned facts and circumstances arrived, at a conclusion that the application was not maintainable and apparently. There seems to be no infirmity or perversity in the abovementioned observations recorded by the learned trial Court.
As far as the principles of law laid down in the cases of ‘Jaswant Singh’, ‘Pardeep Kumar’ and ‘Sunny Kumar @Sunny’ (supra) is concerned, the factual matrix of the present case, being altogether different, in my opinion, the petitioner is not entitled to draw any benefit of the observations recorded in the abovementioned cases.
As a sequel to abovementioned observations, it is hereby held that there is no scope for interference or indulgence in the impugned order, passed by the learned trial Court and that there is no merit in the instant petition.
In view of above discussions, it is hereby observed that the impugned order deserves to be upheld and the present petition, being devoid of merit, deserves dismissal. The same is hereby dismissed, accordingly.
Pending miscellaneous application(s), if any, stand(s) disposed of, accordingly.