Shri Kewal Dua vs Shri T.C. Sharma
2013 Latest Caselaw 3475 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 21st MAY, 2013
                                    DECIDED ON : 6th AUGUST, 2013

+             CRL.M.C. 850/2013 & CRL.M.A. 2744/2013

       SHRI KEWAL DUA                               ....Petitioner
               Through :        Mr.Ashu Singh, Advocate.

                                versus

       SHRI T.C. SHARMA                               ....Respondent
                  Through :     Mr.Umesh Gupta, Advocate with
                                respondent in person.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. The petitioner challenges order dated 03.10.2011 of learned

Metropolitan Magistrate by which he was not given reasonable

opportunity to cross-examine the complainant. The said order was

challenged in revision which was dismissed by an order dated 19.01.2013.

Counsel urged that the petitioner was not given reasonable opportunity of

being heard and when the case was taken up at 04.15 P.M., the

complainant could not be cross-examined due to absence of the counsel.

The petition is contested by the respondent.

2. I have heard the submissions of the parties and have

examined the record. Complaint case under Section 138 Negotiable

Instruments Act is pending before the Trial Court since 2003 in which

respondent was summoned vide order dated 15.12.2003. He put his

appearance only on 07.09.2005 and notice issued under Section 251

Cr.P.C. was given on 01.04.2006. The case was pending for evidence and

finally the evidence was closed on 07.11.2007. An application under

Section 311 Cr.P.C. was moved by the petitioner to cross-examine the

complainant and by an order dated 27.02.2008 it was allowed. However,

the petitioner did not cross-examine the complainant on one ground or the

other. On 03.10.2011, the complainant was present since morning. None

had put appearance on behalf of the petitioner/accused. The Trial Court

kept the matter pending to wait for the petitioner/accused. At 04.30 P.M.,

the matter was taken up again, however, the petitioner/accused was

absent. It was recorded in the order-sheet that after lunch, counsel for the

accused was present and had sought some time on the ground that the

accused was coming. However, when the case was called at 04.15 P.M.

neither the counsel nor the petitioner / accused was present. A clerk for

the counsel for the accused moved an application for exemption of the

accused as he was unable to come from Ludhiana. The Trial Court granted

exemption subject to filing of relevant documents. Since none was present

to cross-examine the complainant, the opportunity to cross-examine him

was closed and the case was fixed for final arguments on 15.10.2011. The

said order was challenged in revision and by a detailed order and with

cogent reasons, it was dismissed on 19.01.2013. I find no illegality or

irregularity in both the orders. The petitioner himself was at fault /

negligent in not cross-examining the complainant since 2008 despite

availing various opportunities. On 03.10.2011, the Court was generous to

await for the arrival of the accused. Neither the accused nor his counsel

was available when the case was called. Counsel did not appear to cross-

examine the complainant. In the present petition, no valid reasons have

been given for the absence of the petitioner or his counsel to cross-

examine the witness. An attempt has been made to put blame upon the

Court which has no basis. Taking into consideration the conduct of the

petitioner and his failure to cross-examine the complainant at relevant

time, I find no merit in the present petition and the same is dismissed with

cost ` 5,000/-. Pending application also stands disposed of being

infructuous.

(S.P.GARG) JUDGE AUGUST 06, 2013 tr