Pooran Singh Yadav vs Smt. Saroj Sharma
2021 Latest Caselaw 2201 MP

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            HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No. 43117 of 2019
           Pooran Singh Yadav Vs. Smt. Saroj Sharma

Gwalior, dated 9-6-2021

      Shri Gaurav Mishra, Counsel for the applicant

      None for the respondent though served.

This application under Section 482 of Cr.P.C. has been filed

against the order dated 30-7-2019 passed by Vth Additional Sessions

Judge, to the Court of 1 st Additional Sessions Judge Vidisha in

Criminal Revision No. 6/2019, by which the order dated 15-3-2019

passed by J.M.F.C., Vidisha in Criminal Case No. 2061/2015 has

been set aside and the respondent has been permitted to cross

examine the applicant/complainant.

The necessary facts for disposal of present application in short

are that the applicant has filed a criminal complaint under Section

138 of Negotiable Instruments Act.

By order dated 12-7-2016, the Trial Magistrate, directed that in

the light of the judgment passed by the Supreme Court in the case of

Indian Bank Association Vs. Union of India reported in (2014) 5

SCC 590, the respondent may file an application seeking permission

to cross examine the complainant. However, no such application was

filed. Thereafter, 20-10-2016, it was held by the Trial Magistrate,

that since, the respondent has not sought permission to cross examine

the complainant, therefore, permission can not be granted and

accordingly, the case was fixed for examination of the respondent

under Section 313 of Cr.P.C. Thereafter, it appears that the

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 43117 of 2019 Pooran Singh Yadav Vs. Smt. Saroj Sharma

respondent filed an application for cross examination of the

complainant, but the said application was rejected by order dated 8-

12-2016, by holding that the Trial Magistrate has no power to review

its order. It appears that against the order dated 20-10-2016, the

respondent preferred a revision, which was dismissed by the

Revisional Court. It appears that once again the respondent filed an

application for recall of complainant for cross examination. The said

application was dismissed by order dated 15-3-2019.

Being aggrieved by the order dated 15-3-2019, the respondent

filed a revision, which has been allowed by the Revisional Court by

holding that cross examination is an important tool in the hand of the

accused and the said right should not be taken away.

Challenging the order passed by the Court below, it is

submitted by the Counsel for the applicant, that the Revisional Court

has not considered the law laid down by the Supreme Court in the

case of Indian Bank Association (Supra) and should not have

allowed the revision.

None appears for the respondent though served.

Heard the learned Counsel for the applicant.

The Supreme Court in the case of Indian Bank Association

(Supra) has held as under :

23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 43117 of 2019 Pooran Singh Yadav Vs. Smt. Saroj Sharma

courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:

23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.

23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest. 23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.

23.5. The court concerned must ensure that examination-in- chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court.

24. We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the abovementioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. The writ petition is, accordingly, disposed of, as above.

(Underline supplied)

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 43117 of 2019 Pooran Singh Yadav Vs. Smt. Saroj Sharma

If the orders passed by the Trial Magistrate are considered in

the light of the directions given by the Supreme Court, then it is clear

that by order dated 12-7-2016, the Trial Magistrate had directed the

respondent to file an application for cross-examination of the

complainant, but inspite of that, no such application was filed. The

respondent was being represented by her Counsel, therefore, in the

light of the order dated 12-7-2016, it cannot be said that since the

respondent was not aware of the niceties of the law, therefore, She

could not file an application for cross-examination of the

complainant. The Court below has ignored the order dated 12-7-

2016, by holding that the respondent was not aware of the

technicalities of the law.

Further, the Revisional Court lost sight of the fact, that the

revision filed by the respondent against the order dated 20-10-2016

was dismissed and thus, the order of the Trial Magistrate by which

permission was refused to cross examine the complainant was already

affirmed. Although the copy of the order passed by the Revisional

Court is not available on record, but it is mentioned in the order sheet

of the Trial Magistrate dated 11-5-2017.

The Trial Magistrate by its order dated 8-12-2016 had held that

it has no jurisdiction to review its own order. The said order is in

accordance with law laid down by the Supreme Court by its order

dated 16-4-2021 in the case of In Re: Expeditious Trial of Cases

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 43117 of 2019 Pooran Singh Yadav Vs. Smt. Saroj Sharma

under Section 138 N.I. Act, 1881.

Thus, this Court is of the considered opinion, that the

Revisional Court has passed the impugned order by ignoring the law

laid down by the Supreme Court from time to time.

Further expeditious disposal of cases registered under Section

138 of N.I. Act, 1881 is necessary to uphold the sanctity of cheques.

In the present case, the complaint was filed in the year 2015, and the

respondent is playing all sorts of tactics to avoid final hearing.

Accordingly, the order dated 30-7-2019 passed by 1 st

Additional Sessions Judge, to the Court of Vth Additional Sessions

Judge Vidisha in Criminal Revision No. 6/2019 is hereby set aside.

The Trial Magistrate is directed to decide the complaint within a

period of 2 months from the date of resumption of normal court

functioning.

The office is directed to immediate communicate this order to

the Trial Magistrate for necessary information and compliance.

With aforesaid observations, this application is Allowed.

(G.S. Ahluwalia) Judge

ARUN KUMAR MISHRA 2021.06.14 10:49:46 +05'30'