Md. Irfan Khan @ Irfan Khan vs The State Of Jharkhand
2023 Latest Caselaw 2531 Jhar

                                                           Cr. M.P. No.26 of 2023




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No.26 of 2023
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Md. Irfan Khan @ Irfan Khan, aged about 55 years S/o Md. Muzaffar Hussain, Resident of Manitola, P.O. & P.S. Doranda, District- Ranchi, PIN-834002 ... Petitioner Versus

1. The State of Jharkhand

2. Chandrasen Singh S/o Sri Kameshwar Singh, Resident of Shukla Colony Old House, Hinoo, P.O. & P.S. Doranda, District- Ranchi ... Opposite Parties

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             For the Petitioner           : Mr. Md. Imteyaz Asraf, Advocate
                                            Mr. S. B. Gupta, Advocate
             For the State                : Mr. Abhay Kr. Tiwari, Addl. P.P.
             For the O.P. No.2            : Mr. Arun Kumar, Advocate
                                            Ms. Anupama Kumari, Advocate
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                                       PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer to quash the order dated 23.09.2022 passed by learned Judicial

Magistrate-XXVIII, Ranchi in M.C.A. No.4937 of 2022 arising out of Complaint

Case No.1782 of 2013 by which the learned Magistrate has allowed the prayer

of the complainant for his cross-examination by the accused subject to payment

of Rs.5,000/- by the complainant to the accused and also ordered that the

complainant shall make himself available on next two days from 23.09.2022

when the complainant will be examined as witness and the accused will not be

permitted to any adjournment on the said next two days.

Cr. M.P. No.26 of 2023

3. The brief fact of the case is that the petitioner is an accused of Complaint

Case No.1782 of 2013 involving the offence punishable under Section 138 of the

Negotiable Instrument Act. The complainant is the payee of the cheque which

was dishonoured and in connection of which the case has been instituted. The

complainant examined himself as a witness on 17.02.2022 and some documents

were marked Exhibits. But the defence prayed for time to cross-examine the

complainant who was examined as C.W.1 on 17.02.2022. On the next date fixed

on 05.04.2022, 28.04.2022 and 22.06.2022 the complainant was present. On

05.04.2022, the defence did not cross-examine the complainant even though the

complainant was present for his further cross-examination. The case was next

fixed to 11.08.2022 for recording of the statement under Section 313 Cr.P.C. On

11.08.2022, the complainant filed an application under Section 311 Cr.P.C. for

his cross-examination by the accused person which was allowed by the said

order dated 23.09.2022 passed in M.C.A. Case No.4937 of 2022 arising out of

Complaint Case No.1782 of 2013.

4. Learned counsel for the petitioner submits that the procedure for a

complaint involving the offence punishable under Section 138 of Negotiable

Instrument Act is summary triable in nature and ample opportunities to the

opposite party No.2/complainant to adduce his evidence in between 2013 to

2022 for long period of nine years has been given but the complainant failed to

do so. On 11.08.2022, the statement of the accused has been recorded under

Section 313 Cr.P.C. and the case is fixed for examination of the defence

witnesses but on 18.08.2022, the opposite party No.2/complainant filed the said

application under Section 311 Cr.P.C. with a prayer to give direction to the

accused for his cross-examination as a witness which was allowed. It is next

Cr. M.P. No.26 of 2023

submitted that the said order is illegal order. Hence, it is submitted that the

order dated 23.09.2022 passed by learned Judicial Magistrate-XXVIII, Ranchi in

M.C.A. No.4937 of 2022 arising out of Complaint Case No.1782 of 2013, be

quashed and set aside.

5. Learned Addl.P.P. appearing for the State and the learned counsel for the

opposite party No.2 opposes the prayer for quashing the order dated 23.09.2022

passed by learned Judicial Magistrate-XXVIII, Ranchi in M.C.A. No.4937 of

2022 arising out of Complaint Case No.1782 of 2013 and learned counsel for the

opposite party No.2 submits that in fact the petitioner has not come to court

with clean hands and if the cross-examination of the complainant as C.W.1

remains inconclusive and the judgment is passed against him of which there is

every possibility, he will take the advantage that without giving any proper

opportunity to cross-examine the C.W.1, the judgment has been passed against

him and will pray for setting aside the judgment of conviction, if passed against

him. Hence, it is submitted that this Cr.M.P., being without any merit, be

dismissed.

6. On being asked by the Court, learned counsel for the petitioner submits

that the petitioner who is the accused, intends to further cross-examine the

C.W.1.

7. Having heard the rival submissions made at the Bar and after carefully

going through materials available in the record, as further cross-examination of

the C.W.1-complainant/opposite party No.2 has been allowed by the trial court

vide order dated 23.09.2022 and the petitioner also wants to cross-examine the

C.W.1, hence, this Court do not find any illegality in the said order dated

23.09.2022 passed by learned Judicial Magistrate-XXVIII, Ranchi in M.C.A.

Cr. M.P. No.26 of 2023

No.4937 of 2022 arising out of Complaint Case No.1782 of 2013 and the learned

trial court is directed to fix the case on 23.08.2023. On that date the complainant

and the petitioner/accused person both be directed by the trial court to remain

present in court and the accused person be asked to cross-examine

complainant/opposite party No.2/C.W.1 and if on that date the accused person

fails to do the same, the C.W.1 will be discharged as a witness and if for any

reason the C.W.1 fails to appear in court on 23.08.2023, the learned trial court

will give one more chance to the complainant to make him physically present

before it for his cross-examination by the petitioner/accused and if even on the

second date fixed if the complainant fails to appear for his cross-examination

then the learned trial court is directed to pass appropriate orders.

8. Accordingly, this Cr.M.P. is disposed of with the aforesaid observation.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 02nd of August, 2023 AFR/ Animesh