Delhi High Court
Bobby Kapoor vs M/S Citi Finance Consumer Finance ... on 2 February, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 2nd February, 2011
+ Crl.M.C.No. 313/2011 & Crl.M.A.No. 1249/2011
% 02.02.2011
Bobby Kapoor ... Petitioner
Through: Mr. Mahipal Singh Rajput, Adv.
Versus
M/s Citi Finance Consumer
Finance India Limited & Ors. ... Respondents
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER (ORAL)
By this petition, the petitioner assailed Order dated 15.01.2011 passed
by the Ld. MM whereby right to cross examine of complainant was closed.
2. The case against the petitioner was under Section 138 of Negotiable
Instrument Act in respect of dishonour of cheque. The petitioner on previous
date of hearing sought copy of statement of account and loan agreement. The
statement of account was immediately furnished to the petitioner and the
matter was listed for cross examination of the complainant witness on
15.01.2011. On 15.01.2011 when matter was fixed the counsel for petitioner
told the court that he would not cross examine the witness as counsel for the
complainant had not supplied copy of statement of account and the loan
agreement as demanded by him on previous hearing. The Ld. MM referred to
the previous hearing order and found that the statement of account was
supplied to the counsel for petitioner in the court itself, still the counsel
persisted that he was not supplied the documents. All other documents viz.
dishonoured cheque, return memo, copy of legal notice etc. were available
with the petitioner. However, counsel for the accused persisted that he would
not cross examine the complainant witness as the loan agreement was not
supplied to him.
3. Counsel for the complainant made statement that he was not relying on
loan agreement, on this, Court asked the Counsel to cross examine the
witness. The Counsel refused to cross examine the witness despite all this.
The Court closed the cross examination.
4. It is submitted by the counsel for petitioner that petitioner was entitled
for loan agreement and he rightly insisted for supply of loan agreement. The
other argument raised is that the witness was not present in the Court. The
witness was undergoing cross examination in some other Court. Therefore,
his cross examination could not have been closed.
A case under Section 138 of NI Act is a summary trial proceeding. The
right of cross examination is given to the accused only if the accused
discloses his defence at the time of taking notice and the Court considers that
in order to meet the defence, cross examination of witness was necessary. In
the present case, the defence taken by the accused was that the cheque was
a forged document. He had not taken the defence that he had not taken the
loan and the loan agreement was not executed.
5. In view of the statement made by the counsel for the complainant that
loan agreement was not being relied upon, it was incumbent upon the
Counsel for the accused to cross examine the witness. A counsel cannot take
the stand that he would not cross examine witness until and unless his terms
and conditions are fulfilled. The Court can only give opportunity to cross
examine the witness, the Court cannot force an advocate to conduct cross
examination if he is not willing and the only option available with the Court
under such circumstances is to close the cross examination. The trial of a
case cannot go as per the whim and fancies of either the accused or his
Counsel. A summary trial has to be speedier and must end as quickly as
possible. No date of hearing can be allowed to be wasted because of
adamant attitude of the counsel. The Trial Court therefore rightly closed the
cross examination of the witness.
This petition has no force and is hereby dismissed.
February 02, 2011 SHIV NARAYAN DHINGRA, J.
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