Kanta Jindal vs Rasik Gupta
2016 Latest Caselaw 5811 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
     +        CRL.M.C. 2388/2016 & Crl.M.A. Nos.10187-10188/2016


                                       Date of Decision : 5th September, 2016
         KANTA JINDAL                                 ..... PETITIONER
                             Through       Mr.R.K. Gupta, Adv.

                             versus

         RASIK GUPTA                                    ..... RESPONDENT
                             Through       Nemo.


         CORAM:
         HON'BLE MR. JUSTICE P.S.TEJI

         P.S.TEJI, J.

1. The present petition has been filed under Section 482 of the

Code of Criminal Procedure for summoning the record/judicial file

pertaining to the case from the Trial Court and setting aside the

order dated 12th February, 2016 passed by the learned Additional

Sessions Judge, Delhi in Criminal Revision No.37/2015 as well as

the order dated 23rd June, 2015 passed by the learned Metropolitan

Magistrate in C.C. No.599/2001 pertaining to the case registered

under Section 138 of the Negotiable Instruments Act.

2. The facts giving rise to the present petition are within the

narrow compass. The respondent prosecuted the petitioner for an

offence punishable under Section 138 of the Negotiable

Instruments Act, on the ground that the petitioner in discharge of

legal liability, issued a cheque being cheque No.086102 dated 15th

February, 2008 for a sum of Rs.50,000/- and the said cheque got

dishonoured on its presentation and that the respondent failed to

make payment of an amount equivalent to the value of cheque

within the stipulated period prescribed under the law despite a

legal notice dated 19th march, 2009.

3. After being served with the notice under Section 251 Cr.P.C.

upon the respondent, the matter was listed for post summoning

evidence of respondent/complainant.

4. Aggrieved by the order dated 23rd June, 2015 whereby the

application of the petitioner filed under Section 311 of the Code of

Criminal Procedure was dismissed, a revision being Crl. Revision

Petition No.37/2015 was filed which was heard by the Court of

Session and by a speaking order dated 12th February, 2016, the

same was dismissed.

5. Thereafter, the present petition has been filed. The

submission made by learned counsel for the petitioner is that he

had moved an application under Section 311 of the Code of

Criminal Procedure, for recalling the complainant for re-

examination.

6. I have heard learned counsel for the petitioner and perused

the available records. Perusal of the file shows that Complaint

Case No.599/2001 was filed on 28th April, 2009 and since then it is

pending and thereafter, notice on the same was issued on 30th May,

2009. Thereafter, the proceedings continued to go on; the

prosecution evidence proceeded and ultimately the evidence of

prosecution was closed on 24th November, 2011. Liberty was

given to the accused to move an application under Section 145(2)

of the Negotiable Instruments Act and since then three dates had

been elapsed. Since the accused did not move any such application,

right of the accused to cross-examination was struck off.

7. It is alleged by learned counsel for the petitioner that Court

of learned Metropolitan Magistrate, without taking into

consideration the order dated 29th July, 2016 passed by its

predecessor Court, passed an order dated 9th November, 2010

which amounted to review and that further successor Court passed

an order dated 24th November, 2011 without applying its judicial

mind, thereby striking off the rights of the accused for cross-

examination.

8. It is submitted that due to improper guidance by the previous

counsel of the petitioner, the petitioner did not file an application

under Section 145(2) of the Cr.P.C. for cross-examination of the

respondent/complainant.

9. It is further stated that on 26th May, 2015, the petitioner

filed an application under Section 311 Cr. P.C. which was

dismissed on 23rd June, 2015 with the observation that the accused

got examination of only two witnesses in defence and that despite

granted last opportunity to the accused to lead defence evidence

that too subject to costs of Rs.1,000/-, the accused did not opt to

lead defence evidence and even did not pay the costs. It was

further observed that despite grant of three opportunities to the

accused to lead defence evidence, the situation remained the same.

10. I have heard learned counsel for the petitioner at length and

gone through the available records.

11. It is a settled law that the parties to the complaint have a

right to be fairly and adequately represented in a criminal trial.

Every accused has a right to meet the case of the prosecution on

even terms. It is also the duty of the Court to ensure that the

principles of natural justice are not violated and an accused is

afforded with a reasonable opportunity to represent his case. Fair

trial is the main object of criminal procedure and it is the duty of

the Court to ensure that such fairness is not hampered with or

threatened in any manner. Coming to the facts of the present case,

this Court observes that on an application preferred under Section

311 of Cr.P.C. for the cross-examination of complainant, the

petitioner was granted adequate opportunities to lead defence

evidence subject to payment of costs and thereafter, three

opportunities were granted to the accused to lead defence evidence

but the same was not done.

12. It is therefore clear that in the facts and circumstances of the

present case, the petitioner is adopting delaying tactics on one

pretext or the other, which he cannot be allowed to do so. The

petitioner is thus trying to prolong the trial of the case.

13. The learned Magistrate has delivered a reasoned order for

the denial of the claim of the accused/petitioner. Similar reasoned

order has also been passed by the revisional Court i.e. Court of

Sessions. This Court is not of any different view than the one

taken by learned Metropolitan Magistrate as well as by the Court

of Sessions. So the view of the Court of Sessions as well as by the

Court of learned Metropolitan Magistrate is upheld by this Court

also.

14. In view of the aforesaid discussions and settled legal

principles, in the considered opinion of this Court, there no

illegality or infirmity in the orders dated 12th February, 2016

passed by the learned Additional Sessions Judge and the order

dated 23rd June, 2015 passed by learned Metropolitan Magistrate.

15. Consequently, the present petition and applications are

dismissed.

(P.S.TEJI) JUDGE SEPTEMBER 05, 2016 aa