Delhi High Court
Sangeeta Bahal vs Sudhanshu Dang & Anr. on 8 January, 2015
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 08, 2015
+ CRL.M.C. 2495/2013 & Cr. M.A. No.9688/2013
SANGEETA BAHAL ..... Petitioner
Through: Mr. M.A. Niyazi & Mr. Manish
Kumar, Advocates
versus
SUDHANSHU DANG & ANR. ..... Respondents
Through: Mr. S.K. Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In proceedings under Section 138 of The Negotiable Instruments
Act, 1881 pertaining to dishonouring of cheque of `7,00,000/-, petitioner-
accused had filed an application under Section 145 (2) of The Negotiable
Instruments Act, 1881, which was dismissed by the trial court vide order
of 25th November, 2011. The said order has attained finality. However,
petitioner had again filed an application under Section 311 of the Cr.P.C.
for recalling of complainant for cross-examination, which was dismissed.
It is evident from the order of 21st November, 2012 (Annexure P-11) of
the Revisional Court that counsel for petitioner had not pressed for
recalling of the complainant for cross-examination and had restricted the
prayer for examination of petitioner and his witnesses and in pursuance to
Crl. M.C. No.2495/2013 Page 1
the aforesaid order, petitioner had stepped into the witness box as DW-1
and was duly cross-examined. Thereafter, petitioner had filed an
application under the second Proviso to Section 143 of The Negotiable
Instruments Act, r/w Section 145 (2) of The Negotiable Instruments Act
and r/w Section 165 of the Indian Evidence Act, which stands dismissed
vide impugned order of 28th May, 2014.
At the hearing, learned counsel for petitioner submitted that the
discretion granted by judgment of a Coordinate Bench of this Court in
Crl. M.C. No. 1996/2010, Rajesh Agarwal Vs. State & anr., decided on
28th July, 2010 to deal with the application under Section 145 (2) of The
Negotiable Instruments Act is not in consonance with the Apex Court's
decision in Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore (2010)
3 SCC 83 wherein it has been clearly held that the accused has an
absolute and unqualified right to cross-examine the complainant on filing
an application under Sub-Section 2 of Section 145 of The Negotiable
Instruments Act.
Learned counsel for respondents pointed out that petitioner had not
filed an application under Section 145 (2) of The Negotiable Instruments
Act within the time granted by the trial court vide order of 2 nd August,
2011 (Annexure P-4). However, learned counsel for respondents
submitted that petitioner has misused the process of law since November,
2011 and so, petitioner needs to be put to terms if petitioner is granted an
opportunity to cross-examine the complainant.
In view of the stand taken as aforesaid, petitioner's application
under Section 145 (2) of The Negotiable Instruments Act is allowed
subject to cost of `60,000/- to be given to respondents before
Crl. M.C. No.2495/2013 Page 2
cross-examination of the complainant. It is made clear that only one
effective opportunity be granted to petitioner to cross-examine the
complainant and if petitioner fails to do so, then further opportunity to
cross-examine the complainant is not to be granted by the trial court.
Since respondents' complaint is pending for the last about four years,
therefore, trial court shall make all endeavors to expedite and conclude
the proceedings in this case within three months from the date already
fixed for hearing.. Let the parties appear before the trial court on 23 rd
January, 2015 to ensure compliance of this judgment, the date of hearing
be preponed by the trial court.
With aforesaid directions, this petition and application are disposed
of.
Trial court be apprised of this order forthwith.
Dasti.
(SUNIL GAUR)
JUDGE
JANUARY 08, 2015
r
Crl. M.C. No.2495/2013 Page 3
