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THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1345 of 2022 (In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973) Deepak Kumar Pradhan ……. Petitioner -Versus- Sweta Parekh ……. Opposite Party For the Petitioner: Ms. Sephalee Das, Advocate For the Opp. Party : Mr. Santanu Kumar Sarangi, Senior Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.08.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. In the present case, the petitioner is facing charges for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I. Act”) in 1.C.C. Case No.1242 of 2018 pending before the Court of the learned J.M.F.C., Bhubaneswar. The complainant has been prosecuting the petitioner for dishonouring of the cheque amounting to Rs.25 lakhs bearing Cheque No.000595 dated 09.02.2018. The statutory legal notice was issued to the petitioner by the complainant under Section 138 of the N.I. Act, to which the petitioner did not reply. Therefore, he has been prosecuted by the opposite party/complainant for purportedly having committed the offence under Section 138 of the N.I. Act. 2. The petitioner in his defence took the plea that during the year 2015, he incurred a hand loan of Rs.38 lakhs from the opposite party for the expansion of his business. As required by the opposite party/ complainant, the petitioner had to submit seven numbers of post-dated cheques as security for the aforesaid hand loan. It was also agreed
Legal Reasoning
between the parties that the petitioner will pay Rs.40 lakhs towards the full and final discharge of the loan amount along with the interest. 3. Since July, 2015, the petitioner allegedly started making repayments towards the same loan amount on installments. The petitioner claims that the opposite party asked him to deposit the
Legal Reasoning
instalment money in 2 bank accounts of one Ms. Ridhi Vora, the niece of Page 2 of 12 the opposite party/complainant, who was then pursuing her studies in Canada. He is relying upon certain electronic communications to substantiate the same. The petitioner further claims that the opposite party had assured that the amount deposited in the account of her niece Ridhi Vora would be factored into the loan amount due. Accordingly, learned counsel for the petitioner contends that the petitioner has already paid about Rs.17 lakhs to Ridhi Vora, which ought to have been factored into the discharge of the liability towards the loan. However, it is contended by the learned counsel for the petitioner that, instead of taking into account the amount that the petitioner had already paid, the opposite party has utilized the post-dated cheques to prosecute him in as many as seven cases for allegedly having dishonoured all the seven post-dated cheques, which have been deposited by the opposite party with her banker. 4. The trial of the case was going on at an expected pace. To substantiate his defence, the present petitioner, on 20.12.2021, moved an application before the trial Court seeking issuance of summon to Ridhi Vora to examine her. The application came to be decided by the trial Page 3 of 12 Court vide impugned order dated 11.03.2022. Learned trial Court rejected the said application, inter alia, stating as under: “Heard. Perused the case record. The accused persons wants to examine Ridhi Vora, niece of the complainant on the pretext that he had paid huge sum of amount to her as per the instructions of the complainant in support of which he had filed his bank statement as well as whatsapp communication between him Ridhi Vora as well as the complainant. Regarding the whatsapp communication submitted by the accused, it is worth mentioning here that it is inadmissible as evidence u/s65B of the Indian Evidence Act, 1872. On the other hand, the complainant objected the petition and averred that this is the delaying tactics of the accused. The payment which the accused person claims to have been made to the niece of the complainant was made in the year 2016 while agreement for clearance of cheque marked as Ext.6 by the prosecution was entered into in the last month of the year 2017.” 5. Heard Ms. Sephalee Das, learned counsel appearing for the petitioner, and Mr. Santanu Kumar Sarangi, learned Senior Advocate appearing on behalf of the opposite party/complainant. 6. Ms. Das, learned counsel for the petitioner, submits that the petitioner, being an accused in the present case, has fundamental and statutory right to defend himself. She relied upon the judgment of the Hon’ble Supreme Court in the case of T. Nagappa vs. Y.R. Muralidhar, Page 4 of 12 reported in (2008) 5 SCC 633, to buttress her argument. In the said judgment in paragraphs 8 & 9, the following principle has been laid down: “8. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under: "243. Evidence for defence. –(1) * * * (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice." entering on his defence, before 9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused Page 5 of 12 in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant.” limited 7. Ms. Das, learned counsel for the petitioner, further by relying upon the judgment of the Hon’ble Supreme Court in the case of Arivazhagan vs. State represented by Inspector of Police, reported in (2000) 3 SCC 328, has contended that the impugned order passed by the Court below would fail the scrutiny of law. Relevant paragraph-9 of the said judgment is quoted by her is reproduced for ready reference: “9. Section 5(1) of the PC Act requires the Special Judge to follow the procedure prescribed by the court for trial of warrant cases by Magistrates. Chapter XIX of the Code contains the provisions for such trial and Section 243 falls within the said chapter. [The corresponding provisions in the old Criminal Procedure Code were sub-sections (8) to (10) of Section 251-A.] It is not disputed before us that a court has the power to refuse to summon any person as a witness on any of the three different grounds: (1) if any witness is cited for the purpose of vexation; (2) if any witness is cited for causing delay; and (3) if any witness is Page 6 of 12 cited for defeating the ends of justice. In fact Section 243(2) of the Code incorporates such powers of the court.” 8. Mr. S.K. Sarangi, learned Senior Advocate appearing for the opposite party, contended that the cheques were issued in the year 2017, whereas, admitted, the case of the petitioner is that all the payments, if at all, made to Ms. Ridhi Vora, has been made in the year 2015. So, the said transactions are not relatable to the debt, the petitioner is obliged to discharge. Mr. Sarangi, learned Senior Advocate, has drawn my attention to one of the exhibits in the present case and has submitted that the reading of the exhibit itself falsifies the claim of the petitioner in its entirety. Therefore, he submitted that this Court, while exercising its revisional jurisdiction, shall not entertain the present petition. He further submitted that the statute provides limited time for the conclusion of the proceeding under Section 138 of the N.I. Act. However, his client has been prosecuting the present case since 2018, whereas the petitioner could successfully prolong the trial of the case. The application moved by the petitioner is one such ploy to delay the proceeding further. Page 7 of 12 Mr. Sarangi, learned Senior Counsel submitted that the petitioner has not replied to the statutory notice despite service, therefore, presumption under Section 139 of the N.I. Act operates against him. Therefore, the only inference that could be drawn from the conduct of the petitioner is that he is liable for the offence punishable under Section 138 of the NI. Act. He has relied upon the judgment reported in 2010 (1) OCR 706, Rangappa vs. Sri Mohan. 9. I am alive to the fact that the present revision petition is pending since last more than two years and an interim order has been operating against the opposite party since 19.05.2022. Pendency of the present proceeding has caused delay of about two years. 10. Taking into consideration the aforementioned, I am not inclined to further adjourn the present matter, and rather dispose of the same at this stage. 11. It is admitted on record that the statutory notice was issued by the opposite party to the petitioner under Section 138 of the N.I. Act, which has not been replied to by the petitioner. Therefore, the presumption under Section 139 of the N.I. Act operates against the petitioner. The Page 8 of 12 said presumption being a rebuttable presumption, the petitioner has every right to lead adequate defence evidence to dispel the statutory presumption that operates against him. Apart from that, Section 243(2) of the Cr. P.C. also gives an indefeasible right to the petitioner being an accused to lead his defence evidence. For ready reference, Section 243(2) of Cr. P.C. is produced hereunder: to the Magistrate to issue any process “243. Evidence for defence.— (2) If the accused, after he has entered upon his defence, for applies compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.” 12. In view of Section-139 of the N.I. Act and Section 243(2) of the Cr. P.C., adducing the evidence in support of the defence is undoubtedly a valuable right and denial of such right amounts to denial of fair trial to the accused. Page 9 of 12 13. It is no more res integra that a fair trial includes providing a fair and reasonable opportunity to an accused to prove his innocence by leading adequate evidence. Therefore, when the question of right to an accused for fair trial comes to the fore, there cannot be any discrimination or denial to lead defence evidence by the accused to defend himself, except on the ground provided under Section 243(2) of Cr. P.C. 14. In the light of the above discussion, when the impugned order was analyzed by this Court, it is found that the trial Court had rejected the prayer of the petitioner to summon the witness primarily on the ground that the petitioner has been attempting to prolong the dispute and the WhatsApp communication relied upon by the petitioner being not admissible under Section 65(B) of the Indian Evidence Act, 1872 summoning the said witness would result in a futile exercise. It is well- known in law that the nature of the evidence likely to come up may not be a ground for the Court to reject the prayer of an accused to summon a particular witness in his defence. The complainant in this case has enough right to cross-examine the witness and confront the witness on Page 10 of 12 the question as to whether the communication was genuine or not. While deciding an application of an accused on his defence, the learned trial Court ought not to delve upon the admissibility of the evidence likely to be adduced by the accused. 15. However, in the instant case, the learned trial Court has travelled beyond its jurisdiction while deciding the application of the petitioner- accused seeking to summon a particular witness in his defence. 16. Therefore, I am inclined to allow the present petition and set aside the impugned order dated 11.03.2022 passed by the learned J.M.F.C., Bhubaneswar in 1.C.C. Case No.1242 of 2018, keeping in view the demand of the statute that the trial of a proceeding initiated under Section 138 of the N.I. Act should be concluded within a stipulated period, I direct the learned trial Court to afford only one opportunity to the petitioner to examine the defence witness proposed to be summoned by him. The learned trial Court shall issue appropriate summons to the proposed witness affording a singular opportunity for cross-examination. Since the witness is stated to be staying overseas, the learned trial Court shall have the option of examining the said witness by Video Page 11 of 12 Conferencing mode as well, so as to prevent any further delay in the conclusion of the trial. 17. The CRLMC is accordingly allowed. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 29th October, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 30-Oct-2024 17:38:04 Page 12 of 12