Delhi High Court
Bb Lal Aggarwal vs The State Govt Of Delhi & Anr. on 4 April, 2022
$~J-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 07.03.2022
% Judgement pronounced on:04.04.2022
+ CRL.M.C. 953/2022& CRL.M.A. 4068/2022
B.B. LAL AGGARWAL ..... Petitioner
Through: Mr. Rakesh Munjal, Senior Advocate
with Mr. Jagdeep Sharma and Mr.
Lokesh Kumar, Advocates.
versus
THE STATE GOVT OF DELHI & ANR. ..... Respondents
Through: Mr. Mukul Talwar, Senior Advocate
with Mr. Sunil Kumar, Mr. Ankit Dixit,
Mr. Surender Kumar and Mr. Piyush
Sharma, Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE TALWANT SINGH
TALWANT SINGH, J.:
1. The Petitioner,i.e., B.B. Lal Aggarwal, has filed the present petition
under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'Cr.P.C.') praying for the following reliefs:
"a. Set aside / quash the impugned order dated 25-01-2022 passed
by the Ld. District & Session Judge, Distt. Shahdara, Karkardooma
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Courts, Delhi in Criminal Revision No.6/2022 titled as Shri B.B.
Aggarwal Versus The State & Ors.
b. Set aside/ quash the impugned order dated 21-12-2021 passed by
the Ld M.M. District Shahdara, Karkardooma Courts, Delhi in
Complaint Case No.814/2014, titled as DAP Buildcon Pvt. Ltd.
Versus Shri B.B. Lal Aggarwal.
c. Set aside/ quash the impugned order dated 09.04.2019, passed by
the Id. ASJ, Sh. Gurdeep Singh, Shahdara District, Karkardooma
Courts, Delhi, in Crl no 25/19 titled as B.B. Lal Aggarwal v. DAP
Buildcon Pvt. Ltd.
d. Impugned order dated 19.05.2018, 24.07.2018, 12.11.2018 and
15.12.2018, passed by the Ld.MM Sh. Prayank Nayak, Shahdara
district, Karkardooma Courts in Complaint Case no.814/2014, titled
as M/S DAP Buildcon Pvt. Ltd. versus B.B. Lal Aggarwal.
e. Grant opportunity to the petitioner to cross examine the
complainant witness as CW1 in the complaint case no.814/2014
titled as DAP Buildcon Pvt. Ltd. Versus Shri B.B.Lal Aggarwal".
2. The immediate cause for filing of the present petition is passing of an
impugned order dated 25.01.2022 by learned Principal District & Session
Judge (hereinafter referred to as 'PDSJ'), Shahdara in Crl.Rev. 06/2022. The
brief history of the case has been captured in the following words in the order
of the learned PDSJ as under:
"9. Perusal of the record reveals that the complaint case u/s 138 of
NI Act was instituted before the Ld. Trial Court on 01.04.2014. On
that day, CW1 Sh. D.B. Jain was examined and discharged and
revisionist/accused was ordered to be summoned for 08.09.2014. On
02.06.2016, notice u/s 251 CrPC was served upon the
accused/revisionist. Ld. Counsel for the revisionist/accused sought
time to file application u/s 145(2) of NI Act. However, on no
objection of Ld. Counsel for the complainant-therein, filing of
application u/s 145(2) of NI Act was dispensed with and the accused-
therein was allowed to cross-examine the witness of the complainant.
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Thereafter, the matter was fixed for cross-examination of CW1 on
various dates of hearings and even cost of Rs.10,000/- was also
imposed upon the revisionist/accused on 24.04.2017. Further, last
opportunity was given to the accused/revisionist to cross-examine
the complainant subject to cost of Rs.75,000/- vide order dt.
19.05.2018 by the Ld. Trial Court. On 24.07.2018, cost of
Rs.35,000/- was paid and the request of Ld. Counsel for the accused-
therein for one more opportunity to cross-examine the witness as she
was recently engaged, was allowed subject to cost of Rs.25,000/- to
be paid to the complainant for 26.10.2018. Again on 12.11.2018,
main counsel for the accused-therein was not available and last
opportunity was given for cross-examination of CW1 subject to cost
of Rs.50,000/- by the ld. Trial Court. Vide order dt I5.12.2018, the
accused-therein failed to pay the entire remaining cost and
opportunity to cross-examine the complainant stood closed. Against
the said order dt. 15.12.2018, the accused-therein filed a revision
petition, which was also dismissed by the Ld. ASJ-01, Shahdara,
Delhi on 09.04.2019 therein the Ld. ASJ observed and opined that in
view of the repeated adjournments sought on one ground or the
other, which was sought to be compensated by way of cost to the
other party, the revisionist has not only abused the process of court
but also availed adequate opportunity to cross-examine but failed.
On 22.01.2019, the statement of accused u/s 313 Cr.P.C. was
recorded and the opportunity was given to lead defence evidence.
The accused/revisionist examined three witnesses i.e.DW1, DW2 and
DW3 and DE was closed vide order dt 28.02.2020 and the matter
beforethe Ld. Trial Court was fixed for final arguments on
27.03.2020.
Thereafter, the matter was listed for final arguments on many dates
and on 06.03.2021, an application u/s 311 CrPC was filed on behalf
of the accused and on 21.12.2021 the impugned order was passed by
the Ld. Trial Court."
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3. The discussion regarding the merits of the revision petition, based on the
arguments addressed by the parties before learned PDSJ and the findings are as
under:-
"In the present revision petition, the revisionist-herein/accused-
therein pleaded that on 18.01.2019, the revisionist paid all the cost
but the Ld. Trial Court did not give any opportunity for cross-
exanimation of CW1. There is neither any mentioning of paying of
such cost nor any request on behalf of the revisionist/accused to
cross-examine CW1 in the proceedings of the Ld. Trial Court from
15.12.2018 to 20.02.2021 when the matter was at the stage of final
arguments before the Ld. Trial Court. The revisionist-herein/accused
therein engaged a new counsel who appeared on 24.07.2018 but she
also did not take any step to cross-examine the witness/CW-1 before
the Ld. Trial Court. Even, the revision against the order
dt.15.12.2018, whereby the opportunity of the revisionist-
herein/accused-therein to cross-examine the witness was closed, was
also dismissed by the Ld.ASJ-01, Shahdara, Delhi on 09.04.2019. In
the present revision petition, the revisionist/accused has not given
any reason as to what prevented him to move the said application u/s
311 CrPC at the appropriate stage. The revisionist has failed to
explain as to why the application u/s 311 CrPC was filed in March
2021 when the DE was already closed and the matter was at the
stage of final arguments. The pleading of the revisionist/accused in
the present revision petition appears to be baseless since the
revisionist also had every right and opportunity as per procedure
and law to raise such objection, which he has not done so within a
reasonable time in this case. It is pertinent to mention here that the
defence witnesses have already been examined and the matter is at
the stage of final arguments before the Ld. TrialCourt. Therefore, if
such a process for allowing to cross-examine the witness, who was
not cross-examined by the revisionist/accused till the case reached at
the stage of final arguments and that too after availing sufficient
opportunities by the revisionist/accused, is allowed then there would
be endless process of the trial of the case, which is already pending
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for more than seven years. It seems that the accused /revisionist did
not bother to avail the opportunities to cross-examine the witness. It
shows that the revisionist/accused was not taking any interest about
the proceedings of the case and also for his interest at the
appropriate stage and now he is trying to delay the process of law by
reverting back the case to the stage of cross-examination of CW1.
Several opportunities were given for cross-examination but the
Ld.Counsel for the revisionist did not prefer to cross-examine CW-1,
which shows the conduct of the revisionist towards the proceedings
and orders of the court. The complainant should not suffer due to
delay tactics of the revisionist/accused. The aforesaid judgments
relied upon by the Ld. Counsel for the revisionist are not applicable
in the facts andcircumstances of the present case. In view of the
discussions made above and facts and circumstances of the case, this
revision petition is devoid of any merits and the same is dismissed."
4. By the present petition not only the impugned order dared 25.01.2022
has been challenged but side by side the order dated 21.12.2021, which was
challenged before the learned PDSJ is also challenged. It is interesting to note
that an order passed by learned ASJ Shri Gurdeep Singh on 09.04.2019 in CR.
No. 25/2019 as well as orders passed by learned Metropolitan Magistrate
(hereinafter referred to MM) on 19.05.2018, 24.07.2018, 12.11.2018 and
15.12.2018 are also challenged by way of the present petition, which was filed
on 24.02.2022. How the orders passed in the years 2018 and 2019 can be
challenged in 2022, this is the first objection raised by the learned senior
counsel appearing for respondent no.2.
5. The sum and substance of the present petition is that learned senior
counsel appearing for the revisionist has prayed for one opportunity to cross-
examine CW-1, who had appeared on behalf of respondent no.2 as a witness in
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the complaint case no. 814/2014 titled as M/S DAP Buildcon Pvt. Ltd. Vs. B.B.
Lal Aggarwal before the learned MM. It has been submitted that the petitioner
was not afforded any opportunity to cross-examine the said witness as he was
not having money to pay costs imposed by the learned MM from time to time
as well as for paying professional fees to his lawyer. The submission of
learned senior counsel Mr. Rakesh Munjal, appearing for petitioner is that this
Court has ample power under Section 311 Cr.P.C. for affording one
opportunity to petitioner to cross-examine CW-1. The matter is stated to be
listed before learned MM on 22.03.2022 for final hearing and prior to the said
date; one opportunity has been prayed by the petitioner for cross-examination
of CW-1.
6. However, Mr. Mukul Talwar, learned senior counsel appearing for
respondent no.2 has submitted that the foundation of the revision petition,
which was filed before the learned PDSJ, itself was shaky as an order passed by
the learned MM under Section 311 Cr.P.C. is an interlocutory order and the
same cannot be challenged by filing a revision petition. Learned senior
counsel for respondent no.2 has relied upon the judgment of the Supreme Court
in the matter of Sethuraman vs. Rajamanickam (2009) 5 SCC 153. Since no
revision petition was maintainable before learned PDSJ, so the present petition
filed against the final outcome of the said revision is again not maintainable.
7. While giving background of the matter in question, it has been submitted
on behalf of the Respondent No.2 that the present respondent had filed a civil
suit against the present petitioner, wherein a decree has been passed in favour
of respondent no.2 and a sum of more than Rs.2.00 Crores is due to be paid by
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the petitioner to the respondent under the said decree, which has not been
challenged till date by filing an appeal by the present petitioner. The orders
passed till 2019 in revision petition before the learned ASJ and earlier orders
passed by learned MM have become final and the same cannot be challenged.
The petitioner had dragged the matter before the learned MM for a long time
for settlement and not even one single paise was paid as per the settlement. The
evidence of the complainant as well as defence evidence stands concluded. No
purpose will be served by cross-examining CW-1. DW-1 in his evidence has
admitted the transaction and his only defence is that the cheques in question
were taken by force by CW-1 and one Shri Parvin Jain. The said Shri Parvin
Jain was summoned by the present petitioner as a witness, who was put a
leading question by the learned counsel for the petitioner and in response
thereto Mr. Parvin Jain denied the specific suggestion that the cheques were
taken by coercion. Moreover, the ground of wrongly closing the cross-
examination of CW-1 can be taken in appeal against the final judgment, if the
present petitioner is convicted.
8. The order sheets of the court of learned MM show that on 24.04.2017,
the complainant had filed his fresh affidavit and copy was supplied to learned
proxy for counsel appearing on behalf of the accused, who sought adjournment
for cross-examination for want of the accused, which was strongly opposed by
learned counsel for the complainant. However, in the interest of justice, the
matter was adjourned to 17.07.2017. On the adjourned date, previous cost was
paid and the present petitioner/accused undertook to pay the cheque amount
within 90 days, so the matter was adjourned to 23.10.2017 for payment. On
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23.10.2017, the matter was referred to Mediation, where the parties settled the
dispute and in the order sheet of 20.12.2017, it was mentioned that they will be
bound by the said Mediation Settlement. The matter was listed for payment on
06.03.2018. In the order dated 11.04.2018, it has been mentioned that the
accused was not making payment as per settlement and the counsel for
complainant requested that the matter be tried. However, counsel for the
accused sought one more opportunity, so the last opportunity was granted to
comply with the agreement, failing which the matter was ordered to be tried on
merits and the same was adjourned to 19.05.2018.
9. On 19.05.2018, it was noted that three defaults had been made by the
accused in making payment, so as per agreement if there were defaults, the
matter was to proceed on merits. The matter was still at the stage of cross-
examination. Counsel for accused sought one more opportunity to cross-
examine the complainant. This opportunity was granted subject to costs of
Rs.75,000/-, keeping in view the fact that the cheque amount is Rs.94.00 lacs.
The case was adjourned to 24.07.2018 for cross-examination. On this
adjourned date, a new counsel appeared for the accused. Only part payment of
costs of Rs.35,000/- was made. Counsel for accused sought one more
opportunity to cross-examine the complainant. The said opportunity was again
granted but subject to further costs of Rs.25,000/- and the matter was adjourned
to 26.10.2018. The main counsel for the accused was not present on
12.11.2018, it was noticed that the matter was adjourned on earlier occasions
and previous costs were not paid by the accused. Last opportunity was granted
to accused, subject to payment of Rs.50,000/-, to cross-examine the
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complainant on 15.12.2018. It was also noted that the date was given as per the
convenience of the counsel for the accused. On 15.12.2018, it is noted that
previous costs had not been paid by the accused. It was submitted that accused
could arrange Rs.65,000/- only and he was not in a position to pay the entire
costs. It was time and again made clear to the accused that he would be
permitted to cross-examine the complainant subject to payment of complete
costs. Three opportunities had been given to the accused to cross-examine the
complainant and pay the costs. Since the entire costs was not paid, so no further
opportunity was given to cross-examine the complainant and his right to cross-
examine the complainant was closed and the matter was adjourned to
22.01.2019 for recording the statement of accused.
10. This order was challenged by the present petitioner/accused by filing a
criminal revision bearing CR No. 25/2019 before the learned ASJ, who passed
the order dated 09.04.2019 dismissing the revision petition by a detailed order.
Relevant portion of the order passed by the learned ASJ is reproduced
hereunder:-
"7. Firstly the cited judgment of Nova Vision (Supra), the cost was
imposed on account of non-appearance of the accused and therefore,
it was argued that there is no power to impose cost while dismissing
the application for appearance. The Hon'ble High Court of Delhi
held that there is no provision of imposition of cost. However,
Section 309 Cr.P.C. provides where the matter is listed for
examination of the witnesses the proceedings can be adjourned or
postponed subject to the payment of cost by the prosecution or the
accused. In the case of D. K. Associates vs Chander Bhan, the
Hon'ble High Court of Delhi held that the Ld. MM and ASJ has
ample power to impose cost in view of Section 309 Cr.P.C. Therefore
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the cited judgment of Nova Vision Electronics Pvt. Ltd. & Anr. vs
State & Anr.(Supra) is not applicable to the facts of the present case.
Moreover, the issue is not challenged before this court that the order
of imposition of the cost was illegal or improper, but the issue is
whether the closer of the opportunity to cross-examine was proper.
Keeping in view the repeated adjournments sought on one ground or
the other which was sought to be compensated by way of cost to the
other party, the revisionist has not only abused the process of court
but also availed adequate opportunity to cross-examine but failed. I
do not find any irregularity, impropriety or illegality by order of Ld.
MM.
8. The present revision petition is dismissed".
11. Thereafter the trial proceeded as usual before the learned MM. The
statement of accused was recorded and defence evidence was also recorded
wherein the present petitioner/accused examined three witnesses and the matter
progressed upto the stage of final arguments. At that belated stage, the present
petitioner/accused moved an application under Section 311 Cr.P.C. for
recalling of cross-examination. This application was dismissed by learned MM
vide order dated 21.12.2021. The operative portion of the said order is
reproduced hereunder:-
"I have perused the file carefully.
It is settled law that u/s 311 Cr.P.C. if court deems it necessary in
the interest of justice and for just decision of the case, court may at
any stage, may summon any person as witness. But it is also settled
that the powers under Section 311 Cr.P.C. has to be exercised
judiciously and not arbitrarily.
Perusal of record shows that many opportunities have been
given to accused for cross-examination of complainant and even
revision petition is dismissed. In this scenario, this court cannot
exercise its power u/s 311 Cr.P.C. as the matter is very old and at
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very mature stage and allowing the application at this stage of trial
will result in protracting the trial and will result in failure of
justice.
Considering the facts and circumstances and the record, the
application u/s 311 Cr.P.C. filed on behalf of the accused stands
dismissed.
Put up for final arguments on 17.01.2022".
12. This order was challenged by filing Crl.Rev. 06/2022 and the same was
disposed of vide impugned order dated 25.01.2022. This order dated
25.01.2022 has been challenged before this court. The operative portion of the
same has already been quoted hereinabove in the preceding paragraph.
13. In my view, the learned MM had given ample opportunities to the
present petitioner/accused to cross-examine CW-1. The complaint was filed in
the year 2014 and the summoning order is dated 01.04.2014. We are in March,
2022 and till date this complaint is still at the stage of final arguments. The
affidavit in evidence was filed by respondent No. 2 on 24.04.2017. Number of
opportunities were given to the present petitioner to cross-examine the said
witness. Cost was imposed from time to time. In the meantime, the accused
entered into a settlement with the complainant but he did not abide by terms of
the same. Lastly on 15.12.2018, when the previous costs of Rs. 1,15,000/- was
not paid by the present petitioner/accused and the learned trial Judge had made
it clear time and again that the opportunity to cross-examine CW-1 cannot be
granted unless and until the previous costs was paid but the accused failed to
pay the entire remaining costs except Rs.65,000/- so, under these compelling
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circumstances, the learned MM had no option but to close the opportunity of
the accused to cross-examine the complainant.
14. This order was challenged before the learned ASJ, who passed the order
dated 09.04.2019 dismissing the revision petition but the same was not
challenged further; hence the said order has become final. The accused had
appeared before the learned MM and the matter progressed from one stage to
another in the meantime, wherein the statement of the accused was recorded.
He himself wanted to appear as defence witness. He was given an opportunity
to do so. Further, he had examined two more witnesses; one of which is Shri
Parvin Jain. After the defence evidence was over and the matter was listed for
final arguments, the present petitioner/accused moved an application under
Section 311 Cr.P.C. at a belated stage in March, 2021, which was disposed of
by the learned MM on 21.12.2021. The same was challenged before learned
PDSJ, who dismissed the revision petition vide order dated 25.01.2022.
15. There is a force in the argument of learned senior counsel appearing for
the respondent no.2 to the effect that in view of the judgment in the matter of
Sethuraman (supra) no revision petition was maintainable. Relevant portion of
the said judgment is reproduced hereunder:-
"5.....Secondly, what was not realized was that the order
passed by the Trial Court refusing to call the documents and
rejecting the application u/s 311 Cr.P.C., were interlocutory orders
and as such, the revision against those orders was clearly barred
u/s 397(2) Cr.P.C. The Trial Court, in its common order, had
clearly mentioned that the cheque was admittedly signed by the
respondent/accused and the only defence that was raised, was that
his signed cheques were lost and that the appellant/complainant
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had falsely used one such cheque. The Trial Court also recorded a
finding that the documents were not necessary. This order did not,
in any manner, decide anything finally. Therefore, both the orders,
i.e. one on the application u/s 91 Cr.P.C. for production of
documents and other on the application u/s 311 Cr.P.C. for
recalling the witness, were the orders of interlocutory nature, in
which case, u/s 397(2), revision was clearly not maintainable.
Under such circumstances, the learned Judge could not have
interfered in his revisional jurisdiction. The impugned judgment is
clearly incorrect in law and would have to be set aside. It is
accordingly set aside. The appeals are allowed".
16. The present petitioner/accused had changed the counsel in between who
had sought further opportunity to cross-examine CW-1. The learned trial Court
had granted the said opportunity. The present petitioner/accused had chosen
not to cross-examine CW-1. A coordinate bench of this Court in Sushil Ansal
vs. State of NCT of Delhi Crl.M.C.2107/2021 dated 15.12.2021 had held as
under:-
"16. Thus, the consistent view of this Court is a mere change of
counsel would not suffice to recall witness to put certain suggestions
in the manner, the new counsel desires. The petitioner had engaged
earlier counsel of his choice. He made a decision not to cross-
examine, not one but 18 witnesses, probably, because the petitioner
is facing charge of conspiracy only, and hence such decision viz not
to cross-examine 18 witnesses cannot be said to an inadvertent act
but may be a part of his strategy. Since considerable delay has taken
place, the plight of victim, also cannot be ignored. The petition being
devoid of merits is thus dismissed. Pending application, if any, also
stands disposed of".
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17. In view of the above, it is clear that no revision lies against dismissal of
an application filed under section 311 CrPC; the petitioner was given ample
opportunities to cross-examine the Complainant; the petitioner failed to avail
the said opportunities because he did not pay the costs; there had been frequent
changes of counsel for the present petitioner, who failed to cross-examine the
witness in question despite opportunities granted by the Court; hence, I do not
find any merit in the petition. The same is hereby dismissed.
18. However, the present petitioner, if ultimately convicted, may take the
ground of not getting an opportunity to cross-examine CW-1 as one of the
grounds in appeal, if he is advised to file the same before the competent court.
TALWANT SINGH, J
APRIL 04, 2022/nk
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