Final Order 7

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR. DLCT01-006533-2023
CR No. 284/2023
Abba Lighting
(Through its Proprietor Sh. Priyank Bhatia)
S/o. Late Sh. Arun Bhatia,
J-3/15, 1st Floor, DLF Phase-2,
Gurgaon-122002
….. Revisionist
Vs.
Saurabh Sagar Enterprises
(Through its Proprietor Sh. Amit Jain)
1892/7-A, 1st Floor, Har Ram Market,
Bhagirath Palace, Chandni Chowk,
Delhi-110006.
….. Respondent
Date of institution of Revision : 12.05.2023
Date on which order reserved : 15.05.2024
Date on which order pronounced : 15.05.2024
O R D E R
1. The present revision petition u/s. 397 r/w Section 400 Cr.
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P.C. has been filed against the impugned order dated
16.03.2023 passed by the Ld. Trial Court of Sh.
Chandra Bose, Ld. P.O., Special Court (NI Act), Tis
Hazari Courts, Delhi in CC No. 1707/2016 titled as
'
Saurabh Sagar Enterprises Vs. Abba Lighting, vide which
the application u/s. 145 (2) NI Act of the revisionist has
been dismissed by the ld. Trial Court.
2. The brief facts of the case necessary to decide the present
revision petition are that the respondent has filed one
complaint u/s. 138 NI Act against the revisionist. During
the trial, vide order dated 10.07.2019, the ld. Trial Court
framed notice u/s. 251 Cr. P.C. against the revisionist and
on the oral prayer of the revisionist, the ld. Trial Court
holding that the revisionist is having sufficient ground to
cross-examine the complainant, allowed the oral prayer for
cross-examination of the respondent. Thereafter, several
opportunities were granted to the revisionist to cross-
examine the respondent and finally vide order dated
09.05.2022, the ld. Trial Court closed the right of the
revisionist to cross-examine the respondent. Later, the
revisionist filed an application u/s. 145 (2) NI Act seeking
permission to cross-examine the respondent but the same
was dismissed by the ld. Trial Court holding that the said
application is not maintainable.
3. Aggrieved by the said order, the revisionist has approached
this Court on several grounds. It is contended by the ld.
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Counsel for revisionist that the ld. Trial court has failed to
appreciate that the revisionist could not cross-examine the
respondent due to facts and circumstances for the reasons
beyond his control. It is further contended that either the
Court was not functional due to lockdown in COVID or
the proceedings were held through V.C. It is further
contended that on few dates, the ld. P.O. was on leave or
on training and on certain days, the respondent himself
was not present. It is further contended that the revisionist
lost track of his case due to which NBWs were issued
against him which were later cancelled by the ld. Trial
Court for the reasons appreciated by the ld. Trial Court. It
is further contended that the impugned order passed by the
ld. Trial Court is silent and non speaking order. It is further
contended that the revisionist has a right to defend his case
and great prejudice shall be caused to the revisionist if he
is not allowed to cross-examined the respondent. It is
therefore, prayed that impugned order passed by the ld.
Trial Court may kindly be set aside. Ld. Counsel relied
upon the following judgments in support of his arguments.
(a)
Smt. Rani Kusum Vs. Smt. Kanchan Devi, Crl. AIR 2005 SC
3304;
(b) State of Punjab and Anr. vs. Shamlal Murari and Anr, AIR
1976 SC 1177;
(c) Collector Acquisition, Anantnag and Anr. vs. Mst. Katiji and
Ors, AIR 1957 SC 1353;
(d) Liberty Footwear Company vs. Force Footwear Company
and Ors., 2009 (41) PTC 474 (Del);
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(e) Kailash vs. Nankhu, AIR 2005 SC 2441;
(f) Salem Advocate Bar Association, Tamilnadu vs. Union of
India, (AIR 2005 SC 3353
(g) Hashmikant M. Sheth vs. State, Gujarat, 2004 (2) GLH 783;
(h) Balakrishnan vs. M. Krishnamurthy, AIR 1998 SC 3222 and
(i) Om Prakash B, Maniyar vs. Swati Girish Bhide, 1993
Banking CLR 1242.
4. To the contrary, ld. Counsel for respondent argued that the
impugned order passed by the ld. Trial Court suffers from
no illegality or irregularity. It is further contended that the
ld. Trial Court rightly passed the impugned order as the
application u/s. 145 (2) NI Act was already allowed and
the revisionist was granted ample opportunity to cross-
examine the respondent which he has not availed despite
several opportunities. It is further contended that there is
no reason to interfere with the impugned order passed by
the ld. Trial Court. It is prayed that the present revision
petition may kindly be dismissed.
5. This Court has heard the rival contentions from both the
sides and perused the judicial record.
6. In the present case, vide impugned order dated 16.03.2023,
the ld. Trial Court while observing that the revisionist was
permitted to cross-examine the respondent on his oral
prayer vide order dated 10.07.2019, dismissed the
application u/s. 145 (2) NI Act of the revisionist holding
the same as not maintainable.
7. It is needless to mention that cross examination of the
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complainant is an invaluable right which is necessary for
eliciting the truth and also for establishing the defence.
Cross examination is the essential tool for proper
appreciation and adjudication of a case. For dispensing
effective and efficient justice, cross examination of a
witness is must.
8. The purpose of cross-examination of a witness has been
succinctly explained by the Constitution Bench of the
Hon’ble Supreme Court in
Kartar Singh v. State of Punjab
(1994) 3 SCC 569 as follows:
“278. Section 137 of the Evidence Act defines what
cross-examination means and Sections 139 and 145
speak of the mode of cross-examination with
reference to the documents as well as oral evidence.
It is the jurisprudence of law that cross-examination
is an acid-test of the truthfulness of the statement
made by a witness on oath in examination-in-chief,
the objects of which are:
(1) to destroy or weaken the evidentiary value of the
witness of his adversary;
(2) to elicit facts in favour of the cross-examining
lawyer's client from the mouth of the witness of the
adversary party;
(3) to show that the witness is unworthy of belief by
impeaching the credit of the said witness;
and the questions to be addressed in the course of
cross-examination are to test his veracity; to
discover who he is and what is his position in life;
and to shake his credit by injuring his character.”
9. The aforesaid view is reiterated by the Hon’ble Apex Court
in
Jayendra Vishnu Thakur v. State of Maharashtra (2009)
7 SCC 104 wherein it is observed:
“24. A right to cross-examine a witness, apart from
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being a natural right is a statutory right. Section 137
of the Evidence Act provides for examination-in-
chief, cross-examination and re-examination.
Section 138 of the Evidence Act confers a right on
the adverse party to cross-examine a witness who
had been examined in chief, subject of course to
expression of his desire to the said effect. But
indisputably such an opportunity is to be granted. An
accused has not only a valuable right to represent
himself, he has also the right to be informed
thereabout. If an exception is to be carved out, the
statute must say so expressly or the same must be
capable of being inferred by necessary implication.
There are statutes like the Extradition Act, 1962
which excludes taking of evidence vis-à-vis
opinion.”
10. The importance of cross-examination of witness, therefore,
cannot be undermined. The fate of the criminal trial
depends upon the truthfulness or otherwise of the
witnesses and, therefore, it is of paramount importance. To
arrive at the truth, its veracity should be judged and for
that purpose cross-examination is an acid test. It tests the
truthfulness of the statement made by a witness on oath in
examination-in-chief. Its purpose is to elicit facts and
materials to establish that the evidence of the witness is fit
to be rejected or accepted.
11. Affording proper opportunity to cross-examine a witness,
sub-serves the requirement of principles of natural justice
but also guarantee an important right which is given to the
accused persons to defend themselves appropriately.
Cross-examination of the witnesses, in the process, is an
important facet of this right. It is one of the inalienable
component of the right to defence, which is also part and
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parcel of right to fair trial, which in turn, is a component of
right to dignified life guaranteed under Article 21 of the
Constitution of India.
12. Every person has a right to a fair trial by a competent
Court in the spirit of the right to life and personal liberty
which includes his right to defence and cross examination
of witnesses in trial. Credibility of any witness can be
established only after the said witness is put to cross-
examination by the accused person.
13. In
Vimal Khanna Vs State, CRL. M.C. 4996/2018, decided
on 01.10.2018, Hon’ble High Court of Delhi held that
denial of opportunity to cross examine the witnesses
violates the Constitutional guarantee to an accused and
vitiates the trial.
Vimal Khanna (Supra) has been followed
in
Mohd. Gulzar Vs The State (GNCTD), 2018 (4) JCC
2291 (DHC), wherein after recording that the counsel for
the accused was not present on three consecutive dates to
cross examine the witness, the Court held that since the
right of cross examination is a valuable right, the child’s
right under Section 33(5) of the POCSO Act has to be
balanced with the aforesaid rights of the accused and thus
permitted one more opportunity to the accused to cross
examine the alleged victim.
14. In the present case, the ld Trial Court had dismissed the
application u/s. 145 (2) NI Act thereby not allowed the
revisionist to cross examine the respondent vide impugned
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order dated 16.03.2023. It is apparent that on 10.07.2019,
the revisionist was allowed to cross-examine the
respondent but the averments raised by the revisionist are
also not completely baseless as the whole world was hit by
the Corona pandemic during the year 2020-2022.
15. It is also important to observe that in cases u/s. 138 NI Act,
the importance of cross-examination is much more higher
as the burden of disproving the case of the complainant is
upon the accused as the statutory presumptions u/s. 118
and 139 NI Act are standing against him.
16. This Court is of the view that for proper and effective
adjudication of the present case and in the interest of
justice, one opportunity may be afforded to the revisionist
to further cross-examine the respondent subject to the cost
of Rs. 20,000/- to be paid to the respondent. The Ld. Trial
Court shall fix a date and subject to payment of cost,
afford one opportunity to the revisionist for further cross-
examination of the respondent. No unnecessary
adjournment shall be entertained. If the cross-examination
could not be completed in one day, it shall be continued on
day to day basis till it is concluded.
17. The present revision petition is allowed on above terms.
The parties are directed to appear before the Ld. Trial
Court on the date already fixed by the ld. Trial Court.
18. The copy of this order be sent to the ld. Trial Court for
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information and necessary action.
19. Revision file be consigned to the Record Room.
Announced in the open
Court on 15th May, 2024
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
15.05.2024(VR)
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