Delhi High Court
Prem Giri vs Daulat Ram & Anr. on 8 September, 2016
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No.2613/2016 & Crl.M.A. No.11196/2016
Date of Decision : 8th SEPTEMBER, 2016
PREM GIRI ..... PETITIONER
Through: Mr.Ratnesh Tiwari, Advocate
versus
DAULAT RAM & ANR. ..... RESPONDENTS
Through: Mr.G.M. Farooqui, Additional
Public Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
CRL.M.C. No.2613/2016
1. The present petition under Section 227 of the Constitution fo
India read with Section 482 of the Code of Criminal Procedure
(Crl.P.C.) has been preferred by the petitioner for quashing of the
order dated 12th July, 2016 passed by the learned Additional
Sessions Judge, North-East, Karkardooma Courts, Delhi.
2. A thumbnail sketch of the facts of the case emerging from
the records and the complaint case filed by the respondent no.1, is
that respondent no.1 executed an agreement to sell/Bayana with the
petitioner for purchasing the property/house of the petitioner for a
total consideration of Rs.30,00,000/- and that the said agreement
was duly signed by both the parties. The respondent no.1 paid a
sum of Rs.10,00,000/- to the petitioner in advance as Bayana
amount at the time of executing the said agreement to sell/Bayana
by way of a cheque and further paid a sum of Rs.5,00,000/- to the
petitioner in cash on account of part payment of the sale
consideration. Thus, the respondent no.1 paid Rs.15,00,000/- in
advance out of total sale consideration of Rs.30,00,000/-.
Thereafter, the said deal could not be materialized due to certain
reasons and the respondent no.1 asked for return of the advance
paid amount of Rs.15,00,000/-. The petitioner gave a cheque for a
sum of Rs.15.00 lakhs to the respondent no.1 in discharge of his
liability. However, when the said cheque was presented for
encashment by the respondent no.1, the same was dishonoured and
returned unpaid with remarks "Account closed". Thereafter, the
respondent no.1 approached the petitioner for apprising him about
the dishonour of cheque but the petitioner did not reply to it.
3. Thereafter, the petitioner filed an application under Section
311 of the Cr. P.C. read with Section 145 of the Indian Evidence
Act for again cross-examination of the respondent no.1 and an
application under Section 315 Cr.P.C, before the learned
Metropolitan Magistrate.
4. In the application filed under Section 311 Cr. P.C., the
petitioner had stated that the recalling of the respondent no.1 for
further examination was necessary as he had discovered fresh
evidence to the effect that he had succeeded to arrange extra
judicial confession/statements of the complainant in the form of
video recording while under Section 315 Cr. P.C., the petitioner
wanted to examine himself as a witness to prove the said
conversation.
5. The said applications were dismissed by the learned
Metropolitan Magistrate on the ground that the conversation
between the parties was not prior to filing of the complaint or
immediately thereafter. It was further held that recalling of
respondent no.1 and further his cross-examination was sought just
to fill the lacuna in the defence of the accused. The second
application i.e. under Section 315 Cr. P.C. moved by the accused,
was dismissed on the ground that the said conversation was not an
evidence necessary for the purpose of deciding the case and
moreover, no other sufficient reason had been provided to permit
the accused at that stage after a considerable delay, for getting
himself examined.
6. The petitioner admitted issuance of cheque. In his
application under Section 145(2) of the NI Act, the petitioner took
the defence that he already paid a sum of Rs.11.00 lakhs to the
respondent no.1 and a sum of Rs.1,00,000/- was due to him.
7. The petitioner preferred a criminal revision petition which
was dismissed by the learned Additional Sessions Judge on 12th
July, 2016. The learned ASJ held that the entire conversation took
place between the petitioner and Mukesh and that the respondent
no.1 was either hearing the conversation or stating the reason for
filing of the complaint case but he had not made any admission. It
was further held that the petitioner had moved the revision petition
just to fill lacuna in his case and that the alleged conversation was
not necessary for decision of the case.
8. I have heard learned counsel for the parties at length & gone
through the available records. The complaint under Section
138/142 of the Negotiable Instrument Act was filed in April, 2011.
Despite grant of various opportunities to the accused for leading
defence evidence, the same were duly availed of by the accused but
did not lead any defence evidence and that the defence evidence
was closed on 16th April, 2015. The petitioner cannot be allowed
either to recall respondent no.1 for the purpose of cross-
examination or to examine himself as a defence witness after a
considerable delay. Even otherwise, the learned ASJ has after
going through the transcript, held that the petitioner was just trying
to obtain admission from the respondent no.1 but the whole
conversation reflected that the petitioner and one Mukesh were
discussing about certain payments which were allegedly made by
the petitioner to the respondent no.1. The applications under
Section 311 Cr. P.C. read with Section 145 of the Indian Evidence
Act & under Section 315 Cr. P.C., therefore, were just preferred to
fill in the lacunae inasmuch as the same were not put in cross-
examination and were also not put in defence evidence by the
petitioner for which opportunities were granted in the trial Court.
9. In view of the facts and circumstances mentioned above, this
Court is of the considered opinion that the petitioner is trying to
delay the judicial proceedings to avoid the outcome or gain an
advantage instead of leading the case to final arguments on merits.
10. 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 learned Metropolitan Magistrate and
the Court of Sessions is upheld by this Court also.
11. In the aforementioned facts and circumstances, this Court
does not find any infirmity in the order dated 12th July, 2016
passed by the learned Additional Sessions Judge.
12. As a result of the same, the present petition and application
are dismissed.
P.S.TEJI, J
th
SEPTEMBER 8 , 2016
aa
