Rakesh Kumar Kala v. Gita Rani Verma

HON’BLE MR. JUSTICE NARESH KUMAR SANGHI Present: Mr. G.S. Punia, Advocate, for the petitioner. Mr. J.S. Dadwal, Advocate, for the respondent. NARESH KUMAR SANGHI, J.

Prayer in this petition filed under Section 482, Cr.P.C., is for quashing of the order dated 18.3.2011 (Annexure P-1), passed by the learned Judicial Magistrate Ist Class, Ludhiana, dismissing the application filed by the petitioner-accused, seeking directions to the respondent-complainant to furnish better title and full particulars pertaining to the facts of the case with regard to her deposition before the Court and compel the respondent- complainant to answer the questions relevant to the proceedings.

The brief facts of the case are that the respondent- complainant filed a complaint against the petitioner-accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, on account of dishonour of a cheque. When during the course of the cross-examination of the respondent-complainant, certain questions were put to her then she refused to answer those questions. The petitioner-accused filed an CRM-M NO. 16186 OF 2011 (O&M) 2 application for issuance of directions to the respondent-complainant to answer the questions put to her during her cross-examination. The learned Trial Court dismissed the application of the petitioner- accused vide order dated 18.3.2011 (Annexure P-1), which is under challenge before this Court.

Learned counsel for the petitioner submitted that the learned Trial Court dismissed the application of the petitioner- accused without taking into consideration the provisions contained in Sections 132 and 147 of the Indian Evidence Act, 1872 (for brevity, ‘the Evidence Act’), and as such, the impugned order dated

18.3.2011 (Annexure P-1), was liable to be set aside. He further submitted that the essential questions relating to the case were put to the respondent-complainant, which she was bound to answer. He further submitted that the learned Trial Court should have issued necessary directions to the respondent-complainant for answering to the questions put by the petitioner-accused. In support of his contentions, learned counsel for the petitioner has placed reliance on the judgment rendered in the case of Shive Sharnagat and others v. The State, 1953 Cri.L.J. 990 (Bhopal).

On the other hand, learned counsel for the respondent- complainant argued that the petitioner-accused had filed the application before the learned Trial Court just to delay the proceedings of the case and to harass the respondent-complainant unnecessarily. He further submitted that all the relevant questions put by the counsel for the petitioner-accused were answered by the respondent-complainant. Learned counsel prayed for dismissal of the present petition.

Heard. CRM-M NO. 16186 OF 2011 (O&M) 3

It is nowhere mentioned in the Evidence Act that the witness has to answer in consonance with the whims of the opposite party. It is also not expected from a witness that the answer coming from him would always be liked by the person who is putting the question to him. In the case in hand, it is nowhere mentioned that the witness refused to answer the questions put by the counsel for the petitioner. On a specific query, learned counsel for the petitioner submitted that whenever a question was put to the respondent-complainant during the course of her cross- examination, she replied that ‘it was in the knowledge of her husband’, therefore, the learned Trial Court should have compelled her to answer the question properly.

In the considered view of this Court, the learned Judicial Magistrate Ist Class, Ludhiana, had rightly rejected the application of the petitioner-accused. The provisions of Sections 132 and 147 of the Evidence Act will come into play only when a witness refuse to answer to a question on the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate him, or that it will expose, or tend directly or indirectly, to expose him, to a penalty or forfeiture of any kind. Section 147 of the Evidence Act prescribes that if any question relates to a matter relevant to the suit or proceedings, the provisions of Section 132 shall apply thereto. According to Section 132 of the Evidence Act, a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or CRM-M NO. 16186 OF 2011 (O&M) 4 indirectly, to expose, such witness to a penalty or forfeiture of any kind. In the present case, the allegations are not that the respondent-complainant had refused to answer any question, rather it has been mentioned in the application that she avoided to reply to a simple, specific and straight question by shifting the onus to her husband, that he was in the knowledge of the particular fact.

In view of the above, it cannot be said that the witness refused to answer the questions. The judgment in the case of Shive Sharnagat (supra), cited by the learned counsel for the petitioner, is not applicable to the facts and circumstances of the present case.