Delhi High Court
Girish Kr. Khanduja vs Anil Malik on 31 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: January 31, 2019
+ CRL.M.C. 4446/2017
GIRISH KR KHANDUJA ..... Petitioner
Through: Mr. H.N. Pandey, Advocate
Versus
ANIL MALIK ..... Respondent
Through: Counsel (Appearance not given)
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
(ORAL)
Impugned order of 26th August, 2017 rejects petitioner's
application under Section 311 of Cr.P.C. by observing that despite ample
opportunity given, petitioner has not filed the application in time and now
petitioner cannot be allowed to file the application to fill up the lacuna.
Petitioner's counsel submits that due to change of jurisdiction,
previous counsel of petitioner could not properly handle the case and so,
application under Section 145(2) of Negotiable Instruments, Act, 1881
could not be filed and the complainant has not been cross examined at all
and his cross examination is essential for just and proper adjudication of
the case.
It is submitted by petitioner's counsel that defence of petitioner is
that the jewellery in question was not purchased from complainant and
the cheque so given to the respondent was security cheque to obtain loan
from him and on these lines, respondent/ complainant needs to be cross
examined.
On the other hand, learned counsel for respondent/complainant
supports the impugned order and submits that final arguments on behalf
of respondent have already been heard by the trial court and the matter is
coming up for hearing before the trial court in March, 2019 for
petitioner's argument and so, no case for allowing petitioner's application
under Section 311 of Cr.P.C. is made out.
Upon hearing and on perusal of the impugned order, I find that
delay by itself is not a valid ground to reject application under Section
311 of Cr.P.C., as it has to be seen whether the cross examination of the
complainant is essential for just adjudication of the case or not. In the
instant case, complainant has not been cross-examined at all and even
application under 145(2) of Negotiable Instruments Act, 1881 has not
been filed. Apparently, this is due to mishandling of the case by previous
counsel for petitioner, for which petitioner cannot be made to suffer. For
the delay occasioned, petitioner can always be put to terms.
Considering the fact that petitioner's defence is required to be put
to the complaint, impugned order is hereby set aside and petitioner's
application under Section 311 of Cr.P.C. is allowed, subject to cost of
₹10,000/- to be paid by petitioner to respondent before the trial court at
the time of cross examination of the respondent/complainant.
In the light of the aforesaid, this petition is accordingly disposed of
with direction to trial court to expedite the trial of this complaint case.
Dasti.
(SUNIL GAUR)
JUDGE
JANUARY 31, 2019
p'ma
