- (1.) The case relating to an offence punishable under Section 138 of the Negotiable Instruments Act, was instituted at the behest of Godrej Agrovet Ltd., a company incorporated under the Companys Act, 1956 through one of its officer being its legal representative and constituted attorney. Subsequently, the said constituted attorney and the legal representative of the company was substituted by another officer. After such substitution the Learned Trial Court directed the accused, the petitioner herein to cross-examine the said substituted representative of the company. The accused/petitioner being aggrieved by such order has brought this criminal revision before this Court.
(2.) It is an admitted position that initially the complaint was filed by the company, the opposite party No. 2 herein through its constituted attorney Subhas Chandra Bera. The said Subhas Chandra Bera after his examination-in-chief was cross-examined partly. Thereafter, as the said constituted attorney of the complainants company has been transferred to elsewhere on its prayer he was substituted by one Bimalendu Panda. Although no evidence of the said Bimalendu Panda was recorded, but the Learned Trial Court directed the accused/petitioner to cross-examine the said Bimalendu Panda. Undoubtedly, such approach of the Learned Trial Court is absolutely illegal and wholly erroneous. The Section 138 of the Evidence Act provides for order of examination of any witness. According to the said provisions the witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examine, then (if the party calling him so desires) re-examined. Thus, when any witness was never tendered by the complainant for his examination in a trial, the question of cross-examination of such witness does not at all arise. Moreover, under the provisions of Section 145 of the Evidence Act, a witness can only be cross-examined only with reference to his previous statement.
(3.) In the case of Sukhwant Singh v. State of Punjab, 1995 AIR(SC) 1601, in paragraph 9, following has been held by the Apex Court; It would, thus be seen that Section 138 (supra) envisages that a witness would first be examined-in-chief and then subjected to cross-examination and for seeking any clarification, the witness may be re-examined by the prosecution. There is, in our opinion, no meaning in tendering a witness for cross-examination only. Tendering of a witness for cross-examination, as a matter of fact, amounts to giving up of the witness by the prosecution as it does not choose to examine him in chief. However, the practice of tendering witnesses for cross-examination in Sessions Trials had been frequently resorted to since the enactment of the Code of Criminal Procedure, 1898. The reason behind taking recourse to such a practice, which undoubtedly is inconsistent with Section 138 (supra), is not far to seek.... (para 9) Thus, tendering any witness for cross-examination without such witness being first examined in chief, held to be inconsistent with the provision of Section 138 of the Evidence Act by the Apex Court.;