1 ( 2025:HHC:27068-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 520 of 2010 Reserved on: 29.07.2025 Decided on: 12.08.2025 Krishan Kumar Kotvi ...…..Appellant Versus Jasbinder Singh …..Respondent Coram The Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Peeyush Verma, Senior Advocate, with Mr. Ajay Kumar, Advocate. For the Respondent: Mr. Balwant Kukreja, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 7.5.2010 passed by learned Judicial Magistrate First Class, Court No.1, Shimla, vide which the respondent (accused before the learned Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short 'N.I. Act'). (Parties shall hereinafter 1Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 ( 2025:HHC:27068-DB ) be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint against the accused before the learned Trial Court for the commission of an offence punishable under Section 138 of the N.I. Act. It was asserted that the accused issued a cheque of ₹40,00,000/-(forty lakhs) drawn on ICICI Bank Ltd., The Mall, Shimla, in discharge of his legal liability. The complainant presented the cheque to his bank for realisation, which sent it to the bank of the accused. However, the bank of the accused returned the cheque with the endorsement “payment stopped by the drawer”. The complainant served notice upon the accused, asking him to pay the amount within 15 days from the date of receipt of the notice. Notice was duly served upon the accused. The accused failed to pay the amount despite receipt of notice. Hence, the complaint was filed to take action against the accused. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence 3 ( 2025:HHC:27068-DB ) punishable under Section 138 of the N.I. Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined Ashwani Kumar (CW1), Ashok Kumar (CW2), Anil Kumar Sachdeva (CW3) and himself (CW4) to prove his case. 5. The accused, in his statement recorded under Section 313 of Cr.P.C. admitted that he had entered into the partnership with the complainant and carried on business for about one month. He admitted that the Firm was dissolved and he undertook to discharge the liability of Punjab National Bank. He stated that the cheque was issued as security. He admitted that the cheque was dishonoured with an endorsement ‘payment stopped'. He stated that he had issued a notice to the complainant after making the payment as per the agreement. He did not produce any evidence in defence. 6. Learned Trial Court held that the issuance of a cheque was not disputed. The cheque was stated to have been issued as security. An agreement between the parties showed that the liability of the bank was to be discharged on or before 7.9.2006, and the cheque was to be presented in case of failure to discharge the liability. However, Anil Kumar Sachdeva (CW3) 4 ( 2025:HHC:27068-DB ) admitted that the payment of ₹26,96,291/- was received in the bank. Another payment of ₹8,35,000/- was received on behalf of the Firm. The bank issued a clearance certificate. Therefore, the entire liability was discharged as per the agreement. The cheque could not have been presented after discharging the liability of the bank. Hence, the accused was acquitted. 7. Being aggrieved by the judgment passed by the learned Trial Court, the appellant/complainant has filed the present appeal, asserting that the learned Trial Court erred in acquitting the accused. The documents were misread. The cheque was issued to the complainant towards the complainant’s share in the stocks, which were handed over to the accused exclusively. The learned Trial Court made out a new case in favour of the accused. No material was produced to show that the accused had made only payment to the bank. Permission was sought for the cross-examination of Anil Kumar (CW3). An application under Section 311 of Cr. P.C. was also filed for summoning the Senior Branch Manager along with the record. However, permission was declined, and the application was dismissed. The accused issued a notice in which he had taken a different stand. This was not considered by the learned Trial Court. Therefore, it was prayed that the present 5 ( 2025:HHC:27068-DB ) appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr. Peeyush Verma, learned Senior Advocate, assisted by Mr. Ajay Kumar, learned counsel for the appellant/complainant and Mr. Balwant Kukreja, learned counsel for the respondent/accused. 9. Mr. Peeyush Verma, learned Senior Counsel for the appellant/complainant, submitted that the learned Trial Court erred in declining the prayer of re-examination of Anil Kumar (CW3). The learned Trial Court based its decision on the fact that the liability of the Firm was discharged by the accused, and the cheque issued by him could not have been presented. However, the learned Trial Court dismissed the application for leading the additional evidence to demonstrate that liability was not discharged by the accused but by the complainant. The act of the learned Trial Court of declining the permission of re- examination and dismissing the application under Section 311 of Cr.P.C effectively prevented the complainant from presenting his case before the learned Trial Court. Therefore, he prayed that the present appeal be allowed, the judgment passed by the learned Trial Court be set aside, and the matter be remitted to 6 ( 2025:HHC:27068-DB ) the learned Trial Court for a fresh decision after admitting the proper evidence. 10. Mr. Balwant Kukreja, learned counsel for the respondent/accused, supported the judgment passed by the learned Trial Court. He submitted that the appellant/complainant had failed to assign any reason for re- examination of the witness, and the learned Trial Court was justified in declining the prayer for re-examination. The order passed by the learned Trial Court dismissing the application under Section 311 of Cr.P.C. was not challenged by taking appropriate proceedings, and it is impermissible to make any grievance in the present appeal. Therefore, he prayed that the appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. Anil Kumar Sachdeva (CW3) brought the record regarding the loan advanced to J.K. Jewellers. He stated in his cross-examination that he had joined the branch on 4.7.2008. He proved the photocopy of the receipt (Ex. DY1 and DY2) and stated that they bore the signatures of Jaswinder Singh. 7 ( 2025:HHC:27068-DB ) However, he was not a handwriting expert. A prayer was made for the cross-examination of the witness; however, this permission was declined. 13. Mr. Peeyush Verma, learned Senior Advocate, submitted that the prayer for cross-examination of the witness was not proper and the complainant intended to re-examine the witness to clarify the facts brought out in the cross- examination. 14. Mr. Balwant Kukreja, learned counsel for the respondent/accused, submitted that the re-examination can be directed to the explanation of the matter referred to in the cross-examination. Since no new matter was referred to in the cross-examination, therefore, there was no scope for re- examination of the witness. This submission is not acceptable. Section 138 of the Indian Evidence Act deals with the order of the examination and reads as under: 138. Order of examinations. —Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. 8 ( 2025:HHC:27068-DB ) Direction of re-examination. —There-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” 15. It is apparent from the bare perusal of this Section that a witness has to be first examined-in-chief, then (if the adverse party so desires) cross-examined and then (if the party calling him so desires) re-examined. Thus, the examination of the witness consists of three parts: first, examination-in-chief, second, cross-examination, and third, re-examination. 16. It was laid down by the Calcutta High Court in Raghu Nath Biswas v. Rabi Ram Chandra Jaladhar, 2008 SCC OnLine Cal 74, that the re-examination of a witness is a right of the party which cannot be denied to it. It was observed: “5. From a plain reading of section 137 read with section 138 of the Indian Evidence Act, 1872, it appears to me that the statute vests an absolute right upon a party to re-examine its witness/witnesses if the party calling him or her so desires. In fact, the word ‘shall’, wherever it appears in section 137 and section 138, in the context of re-examination, should be read as a mandatory expression in the relevant parts of the statute quoted above. The permission of the Court is required only for the purpose of introducing a new matter in such re- examination. xxxxxxxx 10. In my view, the learned Court below has failed to take note of the relevant provisions of section 137 and section 138 of the Indian Evidence Act, 1872, and also the scheme of the said provisions of law. Section 138 of 9 ( 2025:HHC:27068-DB ) the Indian Evidence Act was considered by this High Court in a judgment rendered in the case of State of West Bengal v. Arunesh Pathak, reported in 2000 Cr. LJ 1039. This Court, while considering section 138 of the Evidence Act, 1872, observed as follows: “The right to re-examine appears to be absolute so far as it is directed to the explanation of matters referred to in the cross-examination. The question of taking the permission of the Court would arise only if a new matter is introduced in re- examination and if the occasion so arises for seeking such permission and if a new matter is, by the permission of the Court, introduced during re- examination, then the adverse party gets a right to further cross-examine the witness upon the matter which is introduced at the stage of reexamination….” 11. This Court in the said judgment further observed as follows: “There is nothing in section 138 of the Evidence Act to indicate that a party entitled to recall his witness for re-examination is required to spell out in advance to the Court the particular questions which it would be putting to the witness during such re-examination. Indeed, section 138 gives a statutory right to the party calling a witness to re- examine him after the cross-examination. Such right is, however, not unlimited. It is qualified to the extent that the re-examination is required to be confined only to the explanation of matters referred to in cross-examination, and if a new matter is, however, required to be introduced in re-examination, the party does not have the absolute right to do so. It has to seek the permission of the Court for introducing a new matter, and if it is allowed, to be introduced by the Court, the adverse party has the right to further cross-examine that witness upon that matter. Section 136 of the Evidence Act empowers the Judge to allow only such evidence to be given as in 10 ( 2025:HHC:27068-DB ) his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give be it during the examination-in-chief or cross-examination or even re-examination, the Judge may ask the party proposing to give such evidence in what manner the alleged fact, if proved, would be relevant and it would then be the duty of the Judge to decide as to its admissibility.” 12. Another judgment referred to by the learned Advocate appearing on behalf of the petitioner may be worthwhile to be looked into. The said judgment of the Patna High Court rendered in the case of Hafiz Abdul Halim, reported in AIR 1941 Patna 362, also takes into consideration inter alia section 138 of the Evidence Act. The Hon'ble Patna High Court in the said judgment observed as follows: “The Statute, however, does not contemplate placing any such restriction on the right of re- examination which is conferred by section 138, Evidence Act, and which it was not in law open to the learned Judge to take away……” 13. Finally, a judgment of the Hon'ble Supreme Court cited by the learned Advocate appearing on behalf of the petitioner for the same proposition may be referred to. The said judgment was rendered in the case of Rammi v. State of Madhya Pradesh, reported in AIR 1999 SC 3544. 14. The Hon'ble Supreme Court in the said judgment, while considering section 138 of the Evidence Act, inter alia, observed that the very purpose of re-examination is to explain matters which have been brought down in cross-examination.” 17. The learned Trial Court declined the permission because the witness had nowhere stated that the record pertaining to the document was not with him. That was an irrelevant consideration. The permission to re-examine the 11 ( 2025:HHC:27068-DB ) witness could not have been declined, and only the questions which were beyond the scope of re-examination could have been disallowed by the learned Trial Court. Thus, the learned Trial Court erred in declining the prayer for re-examination and depriving the complainant of his valuable right. 18. The complainant had filed an application under Section 311 Cr.P.C. for proving the original counterfoil of ₹26,96,296/- and summoning the Senior Branch Manager along with the record. It was asserted that the amount was deposited by the complainant and not by the accused. The counterfoil was issued to the complainant. A prayer was made for cross-examination, but it was declined. The proof of the counterfoil was necessary to determine the person who had deposited the amount. Therefore, it was prayed that the witness from the bank be summoned and the counterfoil be permitted to be proved. 19. Learned Trial Court dismissed the application by holding that both parties admitted the payment of ₹26,96,296/- and the dispute was regarding the person who had made the payment. No purpose would be served by allowing the application, as there was ample evidence on record. 12 ( 2025:HHC:27068-DB ) 20. These findings are not sustainable. The complaint was ultimately dismissed because the learned Trial Court held that the amount was deposited by the accused. Both the parties claimed that the amount was deposited by them. Since the complainant intended to establish that the amount was deposited by him and not by the accused, therefore, the complainant was prevented from proving his version before the Court and the finding was recorded against him without allowing him to prove his case. 21. It was submitted that the order to dismiss the application under Section 311 of Cr. P.C. has attained finality and cannot be challenged in the present appeal. This submission is not acceptable. Whenever an appeal is filed, every order passed by the learned Trial Court is subject to scrutiny by the Appellate Court, and an order passed under Section 311 of Cr. P.C. is in the nature of an interlocutory order and not subject to any revision under Section 397(2) of the Cr.P.C. Therefore, much advantage cannot be derived from the fact that the order passed under Section 311 Cr. P.C. was not assailed by filing the revision. 22. It was submitted that the counterfoils were duly proved by putting the exhibit on them, and there was no 13 ( 2025:HHC:27068-DB ) necessity to examine the witness. This submission overlooks the fact that a document can only be proved by examining the person who wrote it or in whose presence it was written. Mere proof of the signatures of the person does not amount to proof of the contents of the document. It was laid down by the Bombay High Court in Sir Mohammed Yusuf v. D, 1961 SCC OnLine Bom 5: AIR 1968 Bom. 112 that the evidence of the contents of the documents is hearsay unless the author is examined. It was observed: “20. …… The evidence of the contents contained in the document is hearsay unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well-recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at paragraph 533 at p. 294 (Halsbury's Law of England, 3rd Edition, Vol. 15) under the heading 'Hearsay'. Says Halsbury : ".. .. .. Statements in documents may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein". 21. In paragraph (534), Halsbury has discussed the reasons for the rejection of hearsay evidence and says: "The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, 14 ( 2025:HHC:27068-DB ) the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumour. The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine him." 22. The Advocate General drew our attention to a decision of the House of Lords in Maria Sturla v. Filippo Freccia (1879) 5 A.C. 623. In that case, the report of a committee appointed by a public department in a foreign state was admitted in evidence as a public document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case, the facts were: The document in question, a report of certain persons called the Ginunta di Marina at Genoa, was sought to be put in evidence for the purpose of proving that person who was formerly consul for the Genoese Republic in London, and the succession to whose daughter, Mrs Brown, was in question, was a native of Quarto near Genoa and at the time that report was made, aged about forty-five years. The document was tendered for that purpose and for that purpose only. 23.It was conceded that the report was an authentic public document of the Genoese Government. The statements, however, contained in the report were not based on the evidence of any of the relatives of the consul at Genoa. The information contained therein did not appear to have been received from any member of Mangini's family. One of the well- recognised exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence relating to pedigree. The only question, which their Lordships of the House of Lords were considering was, whether the contents of the report fell within the purview of the above exception and their Lordships held that it did not, because the statements contained in the report were not based on the evidence given before the dispute started by any 15 ( 2025:HHC:27068-DB ) of the members of the deceased's family. We are not concerned with that part of the decision of the House of Lords in the present case. The point to be noted is that the statements contained in the report were treated as hearsay, and since they did not fall within the well-recognised exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abreo and not the writing of the body of the document at Ex. 28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo.” 23. It was laid down by the Hon’ble Supreme Court in J.D. Jain v. State Bank of India, (1982) 1 SCC 143, that the statement of a witness made by a person, who is not called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It was observed: - “20. The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal? 21. The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on the information given by someone else. (See Stephen on Law of Evidence). 22. The Privy Council in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 observed: "Evidence of a statement made to a witness who is not himself called as a witness may or 16 ( 2025:HHC:27068-DB ) may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that it was made quite apart from its truth is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made." 24. In Madholal Sindhu v. Asian Assurance Co. Ltd., 1945 SCC OnLine Bom 44= AIR 1954 Bom. 305, the documents were proved by examining the persons acquainted with the hand- writing of the person. This was held to be hearsay and inadmis- sible. It was observed: “As I have already observed, it was futile for Mr Somjee to merely prove the signatures or the handwriting of the persons who signed or wrote the various documents without calling the said persons, who were the only per- sons who could depose to the correctness of the contents of those Various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various docu- ments was not the only issue before me. If that had been the only issue, the proof of the signatures or the hand- writing of Deshpande Paranjape or Jamnadas would have been enough. What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the con- tents of those various documents were correct. This cer- tainly could not be proved by Balkrishna Bhagwan Desh- mukh, who had no personal knowledge whatever about the contents of those various documents. It would have served no purpose whatsoever to admit those documents in evidence with the reservation as suggested by Mr. 17 ( 2025:HHC:27068-DB ) Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in - '11 Bom HCR 242 at p. 246, and I accordingly declined to admit in evidence the said various documents in spite of Balkr- ishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or were in the handwriting of Deshpande, Paranjape or Jamnadas.” (Emphasis supplied) 25. In the present case, Anil Kumar (CW3) did not even prove the signatures of the accused and stated that they appeared to be the signatures of the accused, but he was not a handwriting expert. Therefore, there was not even proof of the signatures and the submission that the documents were duly proved before the learned Trial Court cannot be accepted. 26. In view of the above, the present appeal is allowed and the judgment dated 7.5.2010 passed by the learned Judicial Magistrate First Class, Court No.1, Shimla is ordered to be set aside. Matter is remitted to the learned Trial Court for recalling the witness Anil Kumar for re-examination. It will be open to the accused to object to the questions put to him as beyond the scope of re-examination. The matter will be decided afresh based on the evidence led before the learned Trial Court. 27. The parties, through their respective learned counsel, are directed to appear before the learned Trial Court on 27 August, 2025. The record of the learned Trial Court be sent 18 ( 2025:HHC:27068-DB ) back (forthwith) so as to reach the Court well before the date fixed. (Rakesh Kainthla) Judge 12th August, 2025. (yogesh)