Delhi High Court
Micromax Informatics Ltd. vs M/S Fusion Telelinks & Anr. on 27 November, 2014
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No. 1128/2014
Date of decision: 27.11. 2014
MICROMAX INFORMATICS LTD. ..... Petitioner
Through: Mr. Manoj Ohri, Sr. Adv.
with Mr. Himanshu Aggarwal,
Adv.
versus
M/S FUSION TELELINKS & ANR. ..... Respondents
Through: Mr. Sanjeev Sindhwani, Sr.Adv.
with Mr. Jagdish Vats, Adv.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. This is a petition under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred as 'Cr.P.C.') against the
orders dated 07.02.2014 and 22.02.2014 passed by learned
Additional Sessions Judge, Tis Hazari Courts, Delhi whereby
CR No.03/14 titled as 'Fusion Telelinks & Anr. vs. Micromax
Informatics Ltd.' filed by the respondents was allowed.
2. In a nutshell, the facts giving rise to the present petition are that
the petitioner herein filed a complaint under Section 138 read
with Section 142 of the Negotiable Instruments Act, 1881
(herein after referred to as 'N.I. Act') in respect of dishonour of
cheque No.500954 dated 15.09.2010 drawn on Bank of Baroda,
Ashok Nagar Branch, Pune, Maharashtra for a sum of
Rs.43,48,423/- (Rupees forty three lakhs forty eight thousand
and four hundred and twenty three). Despite service of statutory
notice dated 05.10.2010, the respondents failed to make payment
of the amount of the said cheque.
3. Notice under Section 251 Cr.P.C. was served on the respondents
by the trial court on 02.01.2012 and plea of defence of the
respondents/accused were recorded. The respondents did not
move any application under Section 145(2) of the N.I. Act and
the case was fixed for defence evidence. The respondents failed
to adduce any defence evidence. On 30.04.2012, last
opportunity was granted to the respondents to lead evidence
subject to cost of Rs.5,000/- (Rupees five thousand) and the case
was adjourned to 23.05.2012. The respondents did not examine
any defence witness and moved an application for waiving of the
cost. Vide order dated 23.05.2012, the said application was
dismissed and the defence evidence was closed by the trial court.
4. Aggrieved by the said order dated 23.05.2012, respondents filed
Crl.M.C. No.2425/2012. The said petition was disposed of by
this Court observing that the trial court would provide one
effective opportunity to the respondents to lead evidence on
payment of previous cost of Rs.5,000/- (Rupees five thousand)
and further cost of Rs.10,000/- (Rupees ten thousand) i.e. total
cost of Rs.15,000/- (Rupees fifteen thousand) within four weeks
before the trial court.
5. Subsequently the respondents moved an application dated
06.12.2013 under Section 145(2) of the N.I. Act seeking
permission to cross-examine the complainant. The said
application was dismissed by the trial court vide order dated
06.12.2013. Thereafter the respondents had challenged the said
order by filing CR No.3/14 which was allowed by learned
Additional Sessions Judge-03, Central, Tis Hazari Courts, Delhi
vide impugned order dated 07.02.2014.
6. Against the said order, the petitioner filed the present petition.
7. Learned senior counsel for the petitioner contends that
respondents/accused did not move an application under Section
145(2) of the N.I. Act seeking permission to cross-examine the
petitioner. He has pointed out that notice under Section 251
Cr.P.C. was framed on 02.01.2012 and the case was fixed for
defence evidence of the respondents. The respondents failed to
examine any defence witness despite last opportunity granted to
the respondents on 30.04.2012. The defence evidence of the
respondents was closed on 23.05.2012. The respondents filed
Crl.M.C. No.2425/2012 which was disposed of by this Court on
07.11.2013 and till that time the respondents did not cross-
examine the petitioner.
8. Learned senior counsel for the petitioner further submits that
neither the petitioner nor its counsel was present before the
revisional court on 07.02.2014 and there was no question of
giving any statement as recorded in the impugned order dated
07.02.2014.
9. Learned senior counsel for the respondents submits that notice
of revision petition was served on the petitioner and the
petitioner moved an application for inspection of the file of
revisional court. He also submits that counsel for the petitioner
was present before learned Additional Sessions Judge, Delhi and
he had no objection if one opportunity was granted to the
respondents to cross-examine the complainant's witness who
had filed the affidavit in this regard and same has been recorded.
10.I have carefully considered the submissions made by learned
senior counsel for the parties and perused the material on record.
The revision petition filed by the respondents was allowed
primarily on the ground that the counsel for the petitioner agreed
that one opportunity be given to the respondents/accused to
cross-examine the petitioner's witness who had filed the
affidavit. The same is disputed by learned senior counsel for the
petitioner.
11.Be that as it may, it is not necessary to enter into the controversy
as to whether the petitioner's counsel was present or not on
07.02.2014 and the counsel for the petitioner gave the consent as
recorded in paragraph 3 of the impugned order. It would be in
the fitness of things that the matter be remanded back to learned
Additional Sessions Judge to hear both the parties and decide the
revision petition afresh.
12.Accordingly, the impugned order dated 07.02.2014 passed by
learned Additional Sessions Judge, Central, Delhi is set aside
and learned Additional Sessions Judge is directed to decide the
revision petition afresh after giving an opportunity of hearing to
both the parties.
13.Both the parties are directed to appear before learned District &
Sessions Judge, Central, Delhi on 10.12.2014 who will mark the
same to the concerned Additional Sessions Judge, Central,
Delhi.
14.With the aforesaid observations, the petition stands disposed of.
15.Trial court record be sent back forthwith.
(VED PRAKASH VAISH)
JUDGE
NOVEMBER 27, 2014/aj
