Sandeep Chaudhary vs Col. R.P. Mendiratta
2012 Latest Caselaw 1266 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.M.C.No.672/2012

                                      Date of Decision : 24.02.2012

SANDEEP CHAUDHARY                                    ...... Petitioner
                                  Through: Mr. Ruchir Batra, Adv.

                                    Versus

COL. R.P. MENDIRATTA                        ......     Respondent

Through: None CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (oral)

1. This is a petition under Section 482 Cr.P.C. read with

article 227 of the Constitution of India for setting aside the

order dated 09.01.2012 passed in Crl. Rev. P. No. 86/2011

by Sh. S. K. Sarvaria, the learned District & Additional

Sessions Judge, North West District, Rohini Courts, Delhi

dismissing the revision petition of the petitioner against the

order dated 23.09.2011 passed by the learned Metropolitan

Magistrate by virtue of which the application of the

petitioner under Section 311 Cr.P.C. for calling defence

witness Sharad Mehta was disallowed.

Crl. M.C. No. 672/2012 Page 1 | 8

2. Briefly stated the facts of the case are that the petitioner is

facing trial for an offence under Section 138 of the

Negotiable Instruments Act for having issued three different

cheques aggregating to an amount of ` 13,50,000/-. The

petitioner/accused had filed an application under Section

311 Cr.P.C. for summoning Sharad Mehta, a US citizen and

brother-in-law of the respondent herein, as a witness in the

Court. This application of the petitioner was allowed and

Sharad Mehta was summoned as a witness. On

04.01.2011, Sharad Mehta was in India, but the date on

which he was to be examined, the learned Presiding Officer

was not available. The petitioner had not taken requisite

steps for summoning the said witness by depositing the

money. It has been noted in the order dated 23.09.2011

that Sharad Mehta went back to USA as he could not stay

for long in India. The matter had been pending in the

Courts below for 3½ years and it was also noted by the

learned Trial Court that the petitioner had not been

completing his defence evidence for the said period. On

04.04.2011, the petitioner was directed specifically to take

Crl. M.C. No. 672/2012 Page 2 | 8 steps within a period of one week to get the summons

issued to the witness. Despite this, no steps were taken

and it seems that the petitioner was indulging in dilatory

tactics. This fact was noted by the learned Magistrate

whereupon he closed the opportunity to lead defence

evidence of the petitioner and fixed the case for final

arguments on 13.10.2011.

3. The petitioner feeling aggrieved by the said order preferred

a revision petition bearing no. 86/2011, which came to be

decided by the learned Additional Sessions Judge vide order

dated 09.01.2012. The learned Additional Sessions Judge

had also noted the concern of the learned Trial Judge that

the petitioner himself was responsible for indulging in

dilatory tactics by not concluding the defence evidence.

The exact language used by the learned Additional Sessions

Judge is reproduced herein under:

"1. This revision petition is directed against the order dated 23/09/11 passed by the Ld. Metropolitan Magistrate by which the application moved u/s 311 Cr.P.C. of the petitioner/accused for calling witness Sh.

Sharad Mehta for his statement in defence

Crl. M.C. No. 672/2012 Page 3 | 8 of the petitioner was declined by the Ld. Metropolitan Magistrate.

2. The contention of Ld. Counsel for petitioner/accused is that said Sh. Sharad Mehta is brother-in-law of the complainant and his statement is essential in the defence of the accused and the petitioner/accused wants to disprove the case of the complainant that he received the amount in question from Sh. Sharad Mehta and the petitioner/accused is ready to bear his travelling expenses by air so the impugned order may be set aside.

3. On behalf of the respondent it is argued that respondent/complainant is a Senior Citizen. The statement of the petitioner/accused was recorded u/s 313 Cr.P.C. on 04/01/08 and more than four times thereafter last opportunity was granted for Defence Evidence but it was not concluded by the petitioner. On 04/01/11 Sh. Sharad Mehta came to the Court from USA but the Ld. Presiding Officer had gone to TIP proceedings as he had to return on the same night, he had to leave the Court. The opportunity given on 04/04/11 to summon this witness was not availed of due to steps not taken within stipulated seven days so Ld. Trial Court has rightly closed the evidence of petitioner/accused.

4. I have carefully heard the respective arguments. In this case, number of opportunities were given to the petitioner/accused for conclusion of the defence evidence and right from 2009, the same witness Sh. Sharad Mehta is asked to

Crl. M.C. No. 672/2012 Page 4 | 8 be called. This witness has appeared on 04/01/08 and has no personal stake in this case. He came from USA by spending handsome amount by journey by air which amount, undisputedly, was not reimbursed to him. Therefore, extra efforts should have been made by the petitioner/accused by moving application before Ld. CMM/ACMM for assignment of the case to any other Court for recording statement of the witness Sh. Sharad Mehta which was not done.

5. The latches, omissions and inaction on the part of the petitioner/accused is also reflected in the proceedings that on 04/04/11, he was granted one more opportunity to summon this witness Sh. Sharad Mehta by taking steps within 7 days but these were not taken within 7 days and instead on 29/08/11, application was moved for depositing of diet money and travelling expenses which was dismissed by the Ld. Trial Court due to inordinate delay in taking steps for summoning the witness, as despite the time span of 5½ months given on 04/04/11 for the next date the steps were taken 5½ months later from 04/04/11. Therefore, I do not find any impropriety, illegality or material irregularity in the order passed by the Ld. MM. The Court should not come to the rescue of a negligent party in procedural matter particularly when the question of a witness living at such a far distance in USA is also involved and more particularly when the matter is fixed in defence evidence of the petitioner/accused for above 3½ years since 22/02/08 till the evidence of

Crl. M.C. No. 672/2012 Page 5 | 8 petitioner/accused was closed on 29/08/11.

Therefore, more than sufficient opportunities have already been availed by the petitioner/accused to lead evidence and there is no defect in the order dated 23.09.2011 passed by the Ld. Trial Court.

6. In view of the above, the revision petition is dismissed. Trial Court Record be sent back along with copy of this order. The order in revision be sent to the server (www.delhidistrictcourts.nic.in). Parties are directed to appear before the Ld. Trial Court on 18/01/12. The revision file be consigned to Record-Room.

Sd\-

S. K. Sarvaria District Judge & Addl. Sessions Judge, In-charge North-West Dstrict/Addl.Rent Controller Tribunal, Rohini Courts."

Accordingly, the revision petition had been dismissed.

4. Feeling aggrieved by these two orders, the petitioner has

now preferred the present petition.

5. Section 397 (3) Cr.P.C. clearly lays down that a person who

has once preferred a revision petition under this Section in

this Court cannot prefer a second revision petition. No

doubt, Section 482 Cr.P.C. starts with a non-obstante

clause and an exercise of revisionary powers by a party

cannot be treated as a fetter for exercise of the powers to

Crl. M.C. No. 672/2012 Page 6 | 8 stop the abuse of processes of law and or to pass any order

which is warranted in the interest of justice, but then the

facts of the case should be of such a nature which can merit

the interference of the High Court.

6. In the instant case, the petitioner has not been able to,

prima facie, show that there is any abuse of processes of

law in the two orders which have been passed by the Courts

below nor has he been able to show that the interest of

justice requires passing of an order in his favour for

summoning Sharad Mehta. Sharad Mehta is, admittedly, in

USA and he had come to India once, only for the purpose of

testifying before the Court, which opportunity seems to

have been deliberately not availed by the present petitioner

and for the obvious reasons he seems to be carrying the

notion that by delaying the examination of the witnesses,

he will be able to gain more time and prolong the final

disposal of the case. It is evident that it is these dilatory

tactics which have been followed by the petitioner which

have been cut short by the learned Magistrate by closing

his defence evidence and fixing up the case for final

Crl. M.C. No. 672/2012 Page 7 | 8 arguments.

7. Obviously, in case the witness was residing in India the

Court could have recalled that witness for the purpose of

examination by the petitioner. But the witness is residing

and working in America, which is a distant place.

Summoning of the said witness will not only put the witness

to inconvenience but also it will take considerable length of

time thereby for him to come to India for deposition and

this would cause inordinate delay. I do not find any

justification for interfering in the matter.

8. Accordingly, the petition is without any merit and the same

is dismissed.

                                                              V.K. SHALI,J
FRBRUARY 24, 2012
KP




Crl. M.C. No. 672/2012                                                  Page 8 | 8