Criminal Revision No. 1288 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1288 of 2011 Date of decision: 05.12.2011 Satish Kumar ...Petitioner Versus Karnail Singh and another ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Pankaj Bali, Advocate for the petitioner. None for the respondents. ***** RANJIT SINGH J. This revision is directed against the order passed by the Additional Sessions Judge, Yamuna Nagar whereby he has set aside the conviction of the petitioner recorded under Section 138 of the Negotiable Instruments Act and sentence of six months imprisonment imposed on him coupled with sum of ` 66,000/- awarded as compensation under Section 357 (1) Cr.P.C. The appellate Court, thereafter, has remanded case to the trial Court by observing that the complainant was not subjected to cross examination but still on the basis of the evidence given by the complainant, the conviction of the petitioner was recorded. Being aggrieved against this, the petitioner-accused has filed this revision petition. The facts in brief are that the complainant filed complaint Criminal Revision No. 1288 of 2011 2 against the petitioner that he had issued cheque bearing No. 309682 dated 01.04.2005 for sum of ` 55,000/- to discharge the existing liability. The cheque, when presented for encashment, was returned on 12.05.2005 with the remark 'insufficient balance'. Legal notice was served and the complaint was filed leading to summoning of the petitioner to face trial under Section 138 of the Negotiable Instruments Act. In order to prove the case against the petitioner, the complainant examined Kapil from HDFC Bank, Yamuna Nagar, Avinash Kumar, Officer from Oriental Bank of Commerce, Karnal and he himself appeared as witness. The petitioner after trial was convicted and awarded sentence as already noticed. He, accordingly, assailed this conviction and sentence by filing an appeal. The petitioner had assailed the judgment and conviction primarily on the ground that the complainant appeared as CW3 and examined witness as Ex. CW3/A but his cross examination was deferred on one ground or the other. Thereafter, he never appeared before the trial Court for the purpose of cross examination. Accordingly, the complainant could not be cross examined by the petitioner. The trial Court inadvertently accepted the application for exemption from personal appearance of the complainant and closed the evidence of the complainant because of last opportunity. Thereafter, the Court had recorded the statement of the accused under Section 313 Cr.P.C. on 16.10.2010. The petitioner, accordingly, has pleaded that he was not afforded opportunity to cross examine the complainant and as such evidence of the witness, who is not subjected to cross examination cannot be treated as Criminal Revision No. 1288 of 2011 3 evidence in the eyes of law. The complainant, on the other hand, argued before the appellate Court that the petitioner was rightly convicted. The appellate Court has noticed that the case remained pending for cross examination of the complainant but he could not appear for one reason or the other. The evidence was closed on 14.10.2010. The Court found that it is the trial Court, which has failed to appreciate that testimony of the complainant was not subjected to cross examination and in the absence of his cross examination, the testimony of the complainant would not be a legal evidence. The appellate Court, accordingly, considered it appropriate to remand the case back to the trial Court to afford an opportunity to the petitioner to cross examine the complainant and for the trial Court to pass an order, as per law. This order is now impugned by the petitioner before this Court through the present revision petition. Counsel for the petitioner has relied upon Machander Versus The State of Hyderabad AIR 1955 Supreme Court 792 to urge that the appellate Court was not justified in remanding the case back to the trial Court for repairing the damage in the case of prosecution. The Hon'ble Supreme Court in the case of Machander (supra) was dealing with the powers under Article 136 of the Constitution of India and in this regard has observed that except in clear cases of guilt and where error is purely technical, prosecution cannot be permitted to repair the effects of their bungling. The Court while dealing with the aspect of duty of Court in criminal trial was dealing with the duty of judges and magistrates in regard to the importance of old Section 342 Cr.P.C. (now Section 313 Cr.P.C.). Criminal Revision No. 1288 of 2011 4 The Court has, thus, observed as under:- “ We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one- sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. Except in clear cases of guilt, whom the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to law the effects of their bungling than an accused should be permitted to repairs gap in his defence which he could and ought to have made good in the lower courts. The scales of justice must be kept on an even balance whether for the accused or against him, whether in favour of the State or not; and one broad rule must apply in all cases.” Present one is not such a case, where the Court has not Criminal Revision No. 1288 of 2011 5 complied with Section 313 Cr.P.C. and so the prosecution is seeking to repair any damages to its case. Here the petitioner has been convicted and the appellate Court has rightly found that complainant evidence could not be treated as evidence as he was not subjected to cross examination. It seems to be a case of inadvertent miss by the Court. Counsel for the petitioner has drawn my attention to the order whereby evidence of the complainant was closed by this Court on 14.10.2010. On that day, the presence of the complainant is marked alongwith his counsel. The evidence of the complainant was closed on the ground that no CW was present and it was last opportunity given to the complainant to conclude his entire evidence. The Court, apparently, failed to realize that the complainant, who was present, has to be cross examined but no action was taken to ensure that at least the complainant was subjected to cross examination. To an extent, the petitioner also failed to point out the same before the Court. May be that this was done by or on behalf of the petitioner to get some advantage of the same. The complainant had given his evidence but could not be cross examined for one reason or the other. The reasons, for which the complainant could not be subjected to cross examination, have not been disclosed. Be that as it may, this is not one of those cases where any lacuna is left in the prosecution, which is sought to be repaired. This is a case, where the Court has obviously missed something, which is very important. Giving advantage of this inadvertent miss may lead to failure of justice. No doubt, the petitioner now has to be put to a further trial but it needs to be appreciated that the petitioner Criminal Revision No. 1288 of 2011 6 was not who was at any advantage in any manner. The petitioner stood convicted and sentenced. While remanding the case, the conviction and sentence imposed on the petitioner has been set aside. In a way, this order is for the benefit of the petitioner and not to his disadvantage in any manner. The Court had recorded the conviction on the basis of evidence as it is and the petitioner has come forward to complain against the same. It is not appropriate to interfere in the order passed by the appellate Court having regard to the facts of this case. The revision petition is, accordingly, dismissed. December 05, 2011 ( RANJIT SINGH ) rts JUDGE