In Cr. Revision 70 of 2020- HP HC- ‘Mistake on part of Advocate should not desist the Courts from allowing re-examination of complainant to avoid miscarriage of justice’: Himachal Pradesh High Court emphasizes parameters set under the Evidence Act vis-a-vis NI Act.
Justice Vivek Singh Thakur [16-05-2023]

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Simran Singh

New Delhi, May 17, 2023: In a complaint under Section 138 of the Negotiable Instruments Act, 1881  wherein an application for re-examination was rejected by the Judicial Magistrate First Class, Anni, District Kullu, Himachal Pradesh, a Single Judge Bench of the Himachal Pradesh High Court, exercising its criminal revisional jurisdiction, modified the impugned order by permitting re-examination of the petitioner. The High Court stated that it was necessary to find out the truth by obtaining proper possible evidence on record and for that purpose re-examination of the petitioner on this issue was permissible. It was observed that the petitioner, for mistake on the part of  an Advocate for not praying for her re-examination at the time of cross-examination, should not be made to suffer.

In the matter at hand, the petitioner had complained against the respondent alleging dishonour of cheque vis-a-vis her monthly salary. It was an undisputed fact that the petitioner was an employee of the BHK construction company and the respondent was the Director of the Company. Thereafter, an application was filed on behalf of petitioner that the respondent was a Chairman of the company who had issued the cheque in her favour on behalf of company under reference.

The aforesaid application was opposed by respondent on the ground that admission made by the petitioner with respect to status of respondent during cross-examination that respondent was an employee like her, was unambiguous and clear and, therefore, there was no question of allowing re-examination of the petitioner as proposed, as it would amount to fill up the lacuna and also prolonging of proceedings. Agreeing with the contention of the respondent and also after perusing a catena of cases, Trial Court dismissed the application preferred by the petitioner.

The High Court referred to the provision of Section 145 (2) of the NI Act which sated that after filing of an affidavit by the complainant, on an application filed by the prosecution or the accused, any person giving evidence on affidavit, could be summoned and examined by the Court. This provision further provided examination of a person which may include re-examination of a person, but does not entitle complainant or any other person, who had filed an affidavit in examination-in-chief to re-file an affidavit of his statement in evidence. “Section 145 of the NI Act does not provide or entitle the complainant or any party to file affidavit afresh during examination on summoning by the Court under sub section (2).”

The Bench viewed that the term summon and examination of any person giving evidence in affidavit also included power of the Court to summon and re-examine such witness or person. Re-examination would be governed by provisions of Sections 137 and 138 of the Indian Evidence Act, 1872. The petitioner had proposed to re-file an affidavit in examination-in-chief, which was not permissible under law.“Petitioner was summoned after filing affidavit in examination-in-chief and was cross-examined thereafter, and thus now, for valid grounds, petitioner can only be summoned for re-examination for the purpose of explanation of the matters referred to in cross-examination.”

The Court stated that deposition related to the status of the respondent, revision of averments already made in affidavit filed in examination-in-chief had been proposed by raising and introducing a new matter, which was not permissible under law.

The Bench noted that in the complaint as well as in examination-in-chief, petitioner claimed that respondent was Director/Incharge of the Company concerned on whose behalf he had issued cheque to the petitioner, but in cross-examination, she admitted that he was an employee of the Company like her. Therefore, the petitioner had a right to pray for re-examination of the petitioner after her cross-examination for explanation of the statement made by petitioner with respect to status of the respondent however, the petitioner failed to do so. But later on, it filed an application under Section 311 of Code of Criminal Procedure for re-examination of the complainant.

“Ends of justice and elucidating the truth, obtaining the proper proof of the facts which will lead to just and correct decision of the case, witness can be re-examined without changing the nature of the original case filed against the respondent and it is duty of the Court to determine the truth and render a just decision as failure of imparting justice would amount to miscarriage of justice and further that for mistake on the part of an Advocate or even of the party, the court should not desist from making an endeavour by permitting the party to re-examine the witness, including the complainant, but within the parameters and framework of law as contained under Sections 137 and 138 of the Indian Evidence Act read with Section 142 of the NI Act” observed the Court.

The Bench opined that for ascertaining the correct status of the respondent so as to arrive at just and fair conclusion, it would be necessary to find out the truth by obtaining proper possible evidence on record and for that purpose re-examination of the petitioner on this issue was permissible and petitioner, for mistake on the part of Advocate for not praying her re-examination at the time of cross-examination, should not be made to suffer and as such to this limited extent re-examination of the petitioner may be permitted.

Thus held that the petitioner may be re-examined with reference to the status of respondent in reference to the facts stated in examination-in-chief and in cross-examination with respect to that. However, complainant would not be entitled to introduce any new issue or case in her cross- examination as it is neither prayer of the petitioner not it can be permitted in the facts and circumstances of the present case. In view thereof, the impugned order dated 28-01-2020 passed by the Trial Court was modified by permitting re-examination of the petitioner in aforesaid matter.