Virender Verma vs Bharat Bhushan
2012 Latest Caselaw 2690 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                            DATE OF DECISION : APRIL 24, 2012

+    CRL.M.C. 2505/2011


     VIRENDER VERMA                 ..... Petitioner
                  Through: Mr.Vikram Sharma, Adv.

                  versus


     BHARAT BHUSHAN                         ..... Respondent
                 Through: None.

      CORAM:
      HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J. (Oral)

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1. This petition has been filed by the petitioner under Section 482 Cr.P.C. feeling aggrieved from the order dated 18.07.2012 vide which the learned ASJ allowed the criminal revision petition No.17/2011 filed by the petitioner impugning the order dated 25.02.2011 passed by the learned MM dismissing the application under Section 311 Cr.P.C.

2. In brief the facts leading to the filing of this petition are that Shri Bharat Bhushan, the respondent filed a criminal complaint under Section 138 of the Negotiable Instruments Act

against the present petitioner. The petitioner examined two defence witnesses, but they could not be cross-examined by the complainant and the trial court recorded that 'opportunity not availed, therefore, right to cross is closed'. Thereafter, the complainant moved an application under Section 311 Cr.P.C. as defence witness could not be cross-examined on the date when they appeared, and seeking opportunity to cross-examine the defence witnesses. The prayer was declined by the learned M.M.

3. Feeling aggrieved from the said order of Ld.M.M., a criminal revision petition bearing No.17/2011 was filed before the Court of Sessions Judge.

4. The learned ASJ vide impugned order dated 18.07.2011 observed that on 04.01.2011 counsel for the petitioner was not available and thereafter an application under Section 311 Cr.P.C. was moved which was dismissed by learned M.M.. Observing that change of counsel is no ground, the learned ASJ allowed the application, but at the same time every case has to be judged on its own facts & circumstances, the revision petition was allowed and the complainant was granted two opportunities to cross-examine the defence witnesses. It was also specified that if the petitioner failed to cross-examine the defence witnesses during the two opportunities given, no further opportunity shall be granted by the trial court and the matter shall be proceeded further as per law.

5. Today during the course of hearing, on being questioned

as to what is the grievance of the petitioner and as to how the petitioner would be prejudiced if the witnesses produced by him in his defence were permitted to be cross-examined by the complainant, as in the given circumstances due to non- availability of counsel, the complainant could not cross- examine the witnesses on 04.01.2011, learned counsel for the petitioner submitted that he has no objection if the impugned order passed by the learned ASJ is maintained. He submitted that his only problem is that the defence witness i.e. DW-2 Ashok Kumar was earlier employed with the complainant company. With great difficulty, he could produce him as defence witness and his latest address is not available with him now, so he will not be able to produce DW-2 as defence witness and DW-2 be summoned by the complainant at his own expenses by getting the process issued from the Court on the present address available on record or any other address which the complainant may find to be his current address. It has been further submitted that DW-1 was accused and he is not asking for any cost or expenses for his cross-examination.

6. In view of the submissions made by learned counsel for the petitioner, the present revision petition is disposed of maintaining the impugned order to the extent that two opportunities as granted by the learned ASJ to cross-examine the defence witnesses would be availed by the complainant. However, DW-2 shall be summoned by him at his own costs

and expenses and if DW-2 is found to be not residing at the address given before the Court, it shall be the duty of the complainant to ascertain his fresh address and summon him for purposes of his cross-examination.

7. CRL.M.C. 2505/2011 is disposed of in the above terms.

PRATIBHA RANI, J APRIL 24, 2012 'dc'