Dilbagh Singh Dagar v. Shakuntla Chaudhary

"Learned counsel for the petitioner submits that the petitioner is an accused in a complaint filed under Section 138 of the N. I. Act and while leading defence evidence, the petitioner has summoned DW-13 Samarjeet Singh, who is husband of the complainant/respondent, as the primary dispute is with regard to some committee business, which the complainant was running and the petitioner has given her security cheques. It is further submitted that the statement of DW-12 Samarjeet Singh was recorded on 01.09.2022 and as the said witness was not recording the correct statement, by allowing the 'questions and answers', the petitioner was granted permission to cross examine the

said witness. Later, on account of Court time being over, the further cross-examination was deferred and vide order dated 12.09.2022, the trial Court has declined a request made by the petitioner to declare the said witness as hostile on the ground that since no previous statement is on record, which the witness has backed out, therefore, for declaring him hostile, there must be something to confront him.

Learned counsel for the petitioner further submits that the trial Court, however, further scored off part of the statement, which is already recorded by making the following observations: "The said witness was summoned by the Ld. defence counsel and he himself cross examined him, therefore, his testimony cannot be read into evidence. Therefore, the same (testimony of witness) is struck of with the permission to examine the aid witness afresh on his own behalf. It is made clear that no summons/assistance of the court will he given to the accused for calling he said witness in the court. Ld. defence counsel, if willing to examine the said witness, he will bring him on his own in the court. Adjournment sought. Heard and allowed." Learned counsel for the petitioner further submits that once the statement has already been recorded, in the 'questions and answers', the permission has been granted to put all the defence, which goes in favour of the petitioner, therefore, the trial Court cannot struck of the testimony of the witness which is already recorded by passing the impugned order.

Learned counsel for the petitioner further submits that thereafter, the petitioner moved an application for modification of the said order, however, the same was declined, vide another impugned order dated 03.10.2022.

Notice of motion for 13.04.2023.

In the meantime, the operation of the impugned orders shall remain stayed and the statements of DW-12 and DW-13 will be recorded by the trial Court from the stage of recording as on 01.09.2022."