The Tax Publishers 2022 TaxPub(CL) 2917 (Del-HC)

THE NEGOTIABLE INSTRUMENT ACT, 1881

Section 138 Section 284

Magistrate granted permission to lender to authorise her son to conduct prosecution on her behalf, but the authorised person had no personal knowledge about transactions and he could not be cross-examined in place of the lender, the order was set aside to the extent of permitting the lender to be cross-examined through appointment of a Commissioner.

Dishonour of cheque - Petition against grant of permission to lender to authorise her son to conduct prosecution on her behalf - Authorised person had no personal knowledge about transactions - Whether lender can be examined through appointment of a Commissioner

Lender filed a complaint under section 138 against the borrower, wherein, summons was issued against the borrower. The borrower filed an application for cross-examination of the lender. However, application of the lender for grant of permission to authorise her son to conduct the prosecution on her behalf was allowed by the Magistrate on ground of medical conditions. The borrower filed petition against the grant of permission on the ground that the authorised person had neither appeared nor averred at the time of passing of the impugned order, and that he had no personal knowledge about the transactions or cheques in question. There was no assertion as to his specific knowledge in the complaint and therefore, he could not be cross-examined in place of the lender. Held: Question of examining witness by commissioner arises in the situation where such a witness is disabled to attend the Court due to old age or hazardous condition of her health, not in a position to move about or the witness is incapable of attending the Court for any other reason. In such cases, the Court has to exercise its power to examine the witness to see that no such miscarriage of justice does take place. Section 284 of Cr.P.C. makes it clear that where a witness could not be procured before the Court and that it is so essential to meet the ends of justice, such witness can be examined through a Commissioner. Further, the lender has no objection in respect of cross-examination by way of appointment of a Commissioner under section 284 Cr.P.C. Thus, the order was set aside to the extent of permitting the lender to be cross-examined through appointment of a Commissioner.

REFERRED :

FAVOUR : In favour of petitioner

A.Y. :



IN THE DELHI HIGH COURT

SWARANA KANTA SHARMA, J.

Jeevesh Sabharwal v. Aruna Gupta & Anr.

Crl. M.C. 2385/2022

30 August, 2022

Petitioner by: Adit S. Pujari and Aparajita Sinha, Advocates

Respondents by: Naveen Pandey, Advocate for R-1 and 2

ORDER

Crl. M.C. 2385/2022 & Crl. M.A. 10072/2022 (interim relief)

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