Adverse orders passed after prescribed court hours are legally unsustainable.

The respondent/complainant instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881, alleging dishonour of a cheque for ₹5,00,000 against the petitioners/accused.

After the petitioners were summoned and pleaded not guilty, the matter was fixed for recording the complainant’s evidence.

On 22.01.2026, the petitioners were absent. Their counsel appeared in the morning and stated that he would move an application for their personal exemption after lunch.

The Trial Court took up the matter after lunch, but neither the petitioners nor their counsel was present, and at 4:30 p.m. it closed the petitioners’ right to cross-examine the complainant and fixed the matter for recording their statements under Section 313 CrPC.

The petitioners challenged this order, contending that the case status incorrectly reflected 23.02.2026 as the hearing date, that they had instructed counsel to seek exemption, and that the order was passed after the ordinary court hours.

Whether the Trial Court could validly close the petitioners’ right to cross-examine the complainant by passing the order at 4:30 p.m., after the ordinary court hours of subordinate courts in Himachal Pradesh.

Whether, in the circumstances—including the incorrect hearing date reflected in the case status and the failure of counsel to file the exemption application—the petitioners were entitled to restoration of their opportunity to cross-examine the complainant.

Whether such restoration could be granted subject to payment of costs to the complainant.

The Court applied Section 309(2)(c) of the Code of Criminal Procedure, which permits the Court, where a witness is present but a party or pleader is absent or is not ready to examine or cross-examine the witness, to record the witness’s statement and dispense with examination-in-chief or cross-examination.

However, the Court relied on Him Advances & Savings Pvt. Ltd. v. Dila Ram, 2003(1) Cur. L.J. (HP) 458, and Contermann Piepers (Indian) Ltd. v. Himachal Fibres Ltd., 2003(2) Sim.L.J. 1576, for the principle that the ordinary court hours of subordinate courts in Himachal Pradesh are 10:00 a.m. to 4:00 p.m., with a lunch interval, and that no litigant can ordinarily be expected to appear after court hours.

The Court also relied on Omprakash Bhargava v. Hotham Singh Kushwah, 2019 Cri.L.J. 4131, and Hanumana Ram v. State of Rajasthan, 2016 Cri.L.J. 1706, for the principle that an opportunity to cross-examine may be restored, subject to payment of costs, where denial of cross-examination would prejudice the accused.

Although Section 309(2)(c) empowered the Trial Court to dispense with cross-examination when the accused or counsel was absent, the exercise of that power had to occur within lawful court hours.

The impugned order was passed at 4:30 p.m., whereas the prescribed ordinary court hours ended at 4:00 p.m.; consequently, the adverse order could not be sustained on that ground alone.

The Court further found that the case status reflected 23.02.2026 as the hearing date, supporting the petitioners’ explanation that they were under a mistaken impression regarding the listing.

The order sheet also showed that counsel had appeared earlier and undertaken to file an exemption application after lunch.

In these circumstances, the petitioners’ absence was attributable to the erroneous listing information and counsel’s failure to act on their instructions, rather than deliberate disregard of the proceedings.

Since denial of cross-examination could materially prejudice the petitioners’ defence, the Court considered restoration appropriate, while protecting the complainant through an award of costs.

The order dated 22.01.2026 closing the petitioners’ right to cross-examine the complainant was set aside.

The petitioners were granted an opportunity to cross-examine the complainant subject to payment of ₹5,000 to the complainant, such payment being made a condition precedent to exercising that opportunity.

The Court clarified that its observations were confined to disposal of the petition and would not affect the merits of the Section 138 NI Act complaint.