Delhi High Court

Shri Arun Kumar Sharma vs Shri Adesh Goel & Ors. on 8 September, 2020

$~7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of decision: 08th September, 2020

+     CRL.M.C. 1772/2020 & CRL.M.A. 12376/2020
      SHRI ARUN KUMAR SHARMA                ..... Petitioner
                   Through Ms. Priyanka Garg, Adv.

                         versus

      SHRI ADESH GOEL & ORS.                              ..... Respondents
                   Through   None

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (ORAL)

Crl. M.A.12377 /2020 (Exemption)

1. Allowed, subject to all just exceptions.

2. Application is disposed of.

CRL.M.C. 1772/2020

3. Vide the present petition, the petitioner seeks direction thereby to set

aside and quash the order dated 29.08.2020 passed by Ld.M.M.-04

(N.I.Act)/South-East, New Delhi in complaint case under Section 138 of the

Negotiable Instruments Act, 1881 vide CT Cases/3007/2014 titled as Adesh

Goel Vs. M/s. Zexus Air Services Pvt. Ltd., whereby the application under

Section 311 Cr.P.C. by petitioner/accused no.3 for recall of complainant for

further cross examination was dismissed. Further seeks direction thereby to

allow the application under Section 311 Cr.P.C. by petitioner/accused no.3

for recall of complainant for further cross examination.

4. The Respondent No.1/Complainant after examining his witnesses, filed

an application under Section 311 Cr.P.C on 2l.07.2015 for recalling the

witnesses, however, allowed by the Trial Court on 20.01.2016. Further,

another application u/s 311 was filed by complainant on 29.03.2016 for

recalling of CW-8 and the same was also dismissed.

5. On 13.07.2016, while the Petitioner/ Accused No. 3 was cross

examining the complainant, however, the Trial Court directed to complete the

cross-examination of witness stating that the sufficient time has been given,

consequently, several material and necessary questions were left in haste and

could not be put to the complainant by Petitioner / Accused No. 3 to his

prejudice. Thereafter, the Respondent No.1/Complainant closed the

complainant evidence.

6. Learned counsel for petitioner further submits that after closing of

complainant evidence, the said complainant, filed list of documents dated

14.12.2016 alongwith documents and the same were taken on record by the

Trial Court. In addition to above, Respondent No.1/Complainant filed an

application u/s 311 of Cr.P.C, after closing of complainant evidence, upon

which arguments of both parties were heard by the Trial Court on 14.12.2016.

But the Trial Court vide order dated 03.05.2017 held that complainant, at this

stage, does not wish to press the application u/s 311 of Cr.P.C and the same

was withdrawn.

7. Thereafter, the Petitioner/Accused No. 3 was cross examined by

Respondent No.1/Complainant at length, however new documents were

produced by Respondent No.1/ Complainant, for the first time, before the

Trial Court at the stage of defence evidence and were put to the

Petitioner/Accused No. 3 and defence witnesses for questions and

suggestions. The Trial Court vide order dated 22.05.2019 recorded two such

documents viz. appointment letter and Bank Statement for year 2016-17

produced by Respondent No.1/Complainant for the first time at the stage of

defence evidence. The new documents which were produced by Respondent

No./Complainant for the first time before the Trial Court at the stage of

defence evidence and were put to the Petitioner/Accused No. 3 for questions

and suggestions under his cross examination are enumerated as below:-

"i. Ex DW1/X1(Colly) - The ITR of the accused (2014- 2015).

ii. Ex DW1/X2- Leave to defend application filed by the accused in the civil suit.

iii. Ex DW1/X3 - The letter of offer/appointment of the accused in M/s Zexus air services dated 07.12.2016.

iv. Ex DW1/X4 Account ledger enquiry/Statement of the bank account of the accused showing the salary received by the accused as an employee in the company. It is pertinent to note that his appointment as director in the year 2016 whereas the cheques in question pertain to the year 2014.

v. Ex DWl/X5 - PEN DRIVE placed on record by the complainant alleging that it contains the conversation held between the complainant, accused and accused friends.

vi. Ex DW 1/ X6 - Certificate U / s 65B.

vii. Ex DW 1 /X7 - Translated transcript of recording. It is pertinent to note that no certificate under U/s 65B along with translation was given by complainant, it does not show who translated it and without disclosing how and through which device, the conversation was recorded. The Trial Court has not recorded even during cross examination that which device was played from 17 min 10 sec - 17 min 17 sec in the court except a bare statement with regard to playing of the voice of the accused in the court, even the certificate filed by the complainant speaks about recording of the voice in computer and it states that it is a computer generated record which is very much evident that according to the complainant the voice was recorded in the computer and no original such device has been produced in the court to show the recording and it has never come on record where the said conversation was recorded.

viii. Ex DW1/X8 - RTI reply received by the complainant."

8. Learned counsel for petitioner further submits that defence witness,

DW-2, Shri R. K. Sharma Ex- Director of M/s. Zexus Air Services,

Respondent No.2/Accused No.1 was examined and the following documents

were put to him during cross-examination for the first time by Respondent

No.1/Complainant before the Trial Court:-

"i. DW2/B-certificate of incorporation;

ii. DW2 I C-RTI reply containing Form 32 and Form 11 alongwith certificate under section 65B Evidence Act;

iii. Ex.DW2/D-ITR for assessment year 2014-15 of Ms. Zexus Air Services Pvt. Ltd.;

iv. Ex.DW2/GNOC in favour of Ms. Zexus Air Services Pvt. Ltd. as available on website of Director General of Civil Aviation;

v. Ex.DW2/H - Criminal case filed against M/s. Zexus Air Services Pvt. Ltd.;

vi. Ex.DW2/I-calls received by him; Ex.DW2/J his profile at Linkedln .

vii. The other documents put to DW2 were not admitted VIZ. Ex.DW2/E-loan and three promissory notes which was part of record of a Civil case filed by the accused, Ex.DW2/F-email purportedly sent by then CMD Mis. Zexus Air Services Pvt. Ltd."

9. Thereafter, defence witness, DW3, Manager Accounts in Ms. Zexus

Air Services Pvt. Ltd. was examined and the following documents were put

to him during cross-examination for the first time by Respondent

No.1/Complainant before the Trial Court:-

"i.Ex DW3 I DX 2 - DIR 12 of the company.

ii. Ex DW3/DX 3 - MGT-7 of the Company.

iii.ExDW3/DX4, ExDW3/DX4, ExDW3/DX5, ExDW3/DX 6 - company documents.

iv. Ex DW3/DX 7 - Death Certificate of Shri Surender Kumar Kaushik

v. Ex DW3/DX 8 - The passport.

vi. Ex DW3/DX 9- Documents concerning the security clearance of the employees of the company.

vii. Ex DW3/DXI0 - Emails and documents of the company.

Ex DW3/DX 11 - Certificate of the experience of the complainant"

10. Learned counsel for petitioner submits that the Petitioner/Accused No.

3 discovered during the defence evidence (vide Ex.DW2/H) about a complaint

vide CT Cases 8423/2017 to initiate criminal proceeding for the offence of

cheating filed under Section 200 Cr.P.C by Respondent No.1 /Complainant

against Petitioner/Accused No.3 along with other accused persons and notice

of which was not served upon Petitioner/Accused No. 3. Learned counsel

further submits that Petitioner/Accused No. 3 was, hitherto, unaware of this

complaint case against him filed by Respondent No.1 / Complainant.

11. However, the complaint vide CT Case No.8423/2017 to initiate

criminal proceeding for the offence of cheating filed under Section 200 Cr.P.C

filed by Respondent No.1/Complainant against Petitioner/Accused No.3

along with other accused persons was dismissed on absence of grounds for

cheating against Petitioner/Accused No. 3 and other accused persons.

Therefore, the Petitioner/Accused No.3, upon discovery of new documents

put up by Complainant to the Petitioner, DW -1 and his witnesses at the stage

of defence evidence during cross-examination including the complaint vide

CT Cases 8423/2017 to initiate criminal proceeding for the offence of

cheating filed under Section 200 Cr.P.C by Respondent No.1 /Complainant

against Petitioner/ Accused No.3 along with other accused persons. Learned

counsel for petitioner further submits that learned Trial Court dismissed his

application filed under Section 311 Cr.P.C. ignoring the aforesaid fact and

without application of mind.

12. This Court has perused the impugned order dated 29.08.2020 whereby

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

email on 20.08.2020 was not forwarded to the complainant side for necessary

action. Vide the said application, applicant therein sought 15 days

adjournment and from the averments in the application, it was seen that the

complaint in CT cases 8423/2017 was filed in 2017 and it was dismissed in

2017 itself. The complainant has admitted that the Ld. MM dismissed the

application uncontested at the initial stage for the reason that no prime facie

allegations of cheating, etc. were there. Ld. MM was of the opinion that as per

allegation only Section 138 N.I. Act complaint was made out and it was

already pending (subject matter of present complaint).

13. It is further recorded that prayer sought in the said application for

adjournment for 15 days was not warranted for two reasons. Firstly; the

complaint was filed in 2017 and dismissed then, yet the accused side including

petitioner waited till March 2020 to apply for certified copy of the complaint.

14. Moreover, during arguments, it was admitted by accused side that they

came to know about this complaint and dismissal in 2018 itself, yet the

question arose before the Trial Court that as to why they waited till 2020,

which is not explained. Moreover, the said complaint was dismissed

uncontested at initial stage and no opinion as to merits were expressed, thus,

there is no evidence in the complaint which needs to be put to the complainant

for any further cross examination. At the most, the CT cases 8423/2017 was

an unsuccessful attempt by the complainant to initiate a parallel criminal

proceedings for cheating against the accused arising out of the same

transaction which is subject matter of the present case. Cause of action for

both these complaints are different and since nothing was expressed on merits

of Section 138 of N.I. Act complaint, any decision in CT Cases 8423/2017

can have no bearing on the merits of the present case. The application dated

20.08.2020 moved via email for the purpose that certified copy of CT Cases

8423/2017 is awaited therefore has no merits and is liable to be dismissed.

15. The main application of the petitioner moved under section 311

Cr.P.C., however, the Ld. M.M. after going through the same opined that the

application is vague and there are general averments. The only ground stated

is that few documents were put to the defence witnesses which have to be put

to the complainant for further cross examination. The petitioner has not

specified as to which documents need to be put and how the said is relevant

in bringing home the defence of the accused. Ld. M.M. further opined that at

this juncture, if the defence of the accused taken at the time of framing notice

under section 251 Cr.P.C. is considered, wherein the accused side states that

he has substantiated his defence in his application under section 145(2) N.I.

Act. The defence raised in the application were that (1) the accused was never

a director or employee or in any manner connected with Ms.Zexus Air

Services Pvt. Ltd.; and (2) the accused never approached the complainant to

get any job done from the Ministry of Civil Aviation being not related to Ms.

Zexus Air Services Pvt. Ltd. and therefore there was no occasion for him to

draw the present cheque in question for any liability. It was further defended

that the cheque in question was given towards a proposed loan to be given by

the accused to the complainant, which was later refused by the accused and

the complainant misused the cheque in question.

16. Keeping in view the aforesaid fact, learned Trial Court opined that from

the records available, this has been a consistent stand/defence of the accused

and he has cross-examined the complainant. The present application states

that further cross-examination is warranted for new documents which were

put by complainant to defence witnesses. Although the accused side made no

endeavour to substantiate as to which documents it wishes to put to

complainant. Accordingly, Ld. Trial Court further opined that the records

shows that DWl/accused during his cross-examination was put 2 old cheque

Ex.CW1/1B and Ex.CW1/1C which were admittedly drawn by the

accused/DW1. DWl/X1 (Collectively) was admitted as printout of facebook

account of the accused/DW1. Ex.DWl/X1 was admitted to be the certified

copy ITR of the accused/DW1. Ex.DWl/X2 was admitted to be leave to

defend filed by the accused/DW1. Ex.DW1/X3 offer letter and Ex.DWl/X4

account ledger were put the accused/DW1. Ex.DWl/X5, Ex.DWl/X6 and

Ex.DWl/X7 that are voice recording, certificate under section 65B Evidence

Act and translated transcript, respectively, was placed on record and from

those recording voice from 17min:07 sec. to 17min:17sec. put to the accused

was admitted by the accused/DW1. Ex.DW1X8 was complaint copy received

through RTI which is alleged to have been written by the accused/DW1.

17. In the impugned order, learned Trial Court observed as under:-

"8. Further record shows that DW2 was one of the Director of Ms. Zexus Air Services Pvt. Ltd. from 2013 to 2017 and DW2/A was put to him which was identified as a letter dated 21.06.2015 written by then CMD (since deceased) of Ms. Zexus Air Services Pvt. Ltd. to accused. DW2 admitted the following documents put to him during cross-examination- DW2/B-certificate of incorporation; DW2/C-RTI reply containing Form 32 and Form 11 alongwith certificate under section 65B Evidence Act; Ex.DW2/D-ITR for assessment year 2014-15 of Ms. Zexus Air Services Pvt. Ltd.; Ex.DW2/GNOC in favour of Ms. Zexus Air Services pvt. Ltd. as available on website of Director General of Civil Aviation; Ex.DW2/H-criminal case filed against Ms. Zexus Air Services Pvt. Ltd.; Ex.DW2/I-calls received by him; Ex.DW2/J his profile at LinkedIn. The other documents put to DW2 not admitted were Ex.DW2/E-loan and three promissory note which was part of record of a Civil case filed by the accused; Ex.DW2/F-email purportedly sent by then CMD Ms. Zexus Air Services Pvt. Ltd ..

9.Accused side also called in DW3 in defence who was Manager Accounts in Ms. Zexus Air Services Pvt. Ltd. And all the documents presented by DW3 from Ex.DW3/1 to Ex.DW3/4 i.e. authority letter in favour of DW3, confirmation of loan account, statement of bank account of Ms. Zexus Air Services Pvt. Ltd., statement of account showing repayment of loan of Rs.25 Lacs, respectively; and all documents put to DW3 during cross examination from Ex.DW3/X1 to Ex.DW3/X11 that are bank statement, Form No. DIR 12, Form no. MGT7, ITRs, death certificate, passport, NOC, experience certificate were all documents pertaining to accounts or business operation of company Ms. Zexus Air Services Pvt. Ltd. and its then CMD Sh. Suriender Kumar Kaushik.

10.From the records above, it cannot be gathered as to which document the accused side wants to put to the complainant in his further cross-examination. Most of the documents are either admitted by the defence witnesses or pertains to Ms. Zexus Air Services Pvt. Ltd. Be that as it may, accused side despite being given ample opportunities, has failed to explain which document put to any of the defence witness would probably substantiate his defence taken at the time of framing of notice under Section 251 CrPC. The application therefore, for recall of complainant for further cross-examination is completely baseless. From the above discussion, this Court sees no such document which needs to be put to the complainant for further cross-examination, which would substantiate the defence of the accused in the present case. It is a settled principle of law that Section 311 Cr.P.C. cannot be allowed to fill in any lacunae in the trial or to delay the trial, as was also held in Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711. The application dated 20.08.2020 filed on the email seeking 15 days adjournment as well as application under section 311 Cr.P.C. are hereby dismissed. Nothing expressed in this Order shall have a bearing on the merits of the present case."

18. In addition to above, learned Trial Court has considered the fact that the

complainant is a Senior Citizen and the matter is pending for more than five

years. This Court directed the Trial Court to expedite the trial. Accordingly,

Trial Court deemed it appropriate to grant only one opportunity to both the

sides to complete their oral arguments. Parties are at liberty to file written

submission by 10.09.2020. Ld. Trial Court further clarified that no further

adjournment shall be granted.

19. In view of above facts, filing of application at belated stage which does

not prejudice to the rights and contention of the petitioner, I am of the view

such application is delay tactics to get the trial delayed.

20. Learned counsel for petitioner has relied upon the judgment in the case

of P. Sanjeeva Rao v. State of A.P.: (2012) 7 SCC 56; Venu Madhava K. vs.