Final Order 3

Order Details: COPY OF ORDER
Pdf Text: CR No. 365/2025 Sharma Welding Store and Ors. Vs. Fortune Weld Page No.1 of 11
IN THE COURT OF MS. SHILPI JAIN, ADDITIONAL
SESSIONS JUDGE-02, TIS HAZARI COURTS, DELHI
CNR No.DLCT01-010834-2025
Criminal Revision No. 365/2025
Sharma Welding Store & Ors. Vs. Fortune Weld
IN THE MATTER OF :
1. Sharma Welding Store,
Through its Partners
G-52, Sector-9, Noida, U.P.
….Revisionist/Petitioner No.1
2. Shri Ketan Sharma,
S/o Shri Tilak Raj Sharma,
R/o C-5, Arya Samaj Gali No.2, Majlish Park,
Adarsh Nagar, New Delhi
….Revisionist/Petitioner No.2
3. Shri Chetan Sharma,
S/o Shri Tilak Raj Sharma,
R/o C-5, Arya Samaj Gali No.2, Majlish Park,
Adarsh Nagar, New Delhi.
….Revisionist/Petitioner No.3
4. Ms. Deepa Sharma,
W/o Shri Narendra Sharma,
R/o C-5, Arya Samaj Gali No.2, Majlish Park,
Adarsh Nagar, New Delhi.
….Revisionist/Petitioner No.4
VERSUS
Fortune Weld
Through its Partner,
Manish Patodia,
Regd. Office at 208, 4855/24,
Darya Ganj, Delhi-110002
….Respondent
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Date of Institution : 22.07.2025
Date of Judgment : 21.08.2025
O R D E R
Vide this order, this Court shall decide revision petition
filed under Section 438 read with Section 440 Bhartiya Nagrik
Suraksha Sanhita, 2023 for setting aside the impugned order dated
06.06.2025 passed by Shri Arvind Tomar, Ld. JMFC (NI
Act)-07, Central District, THC in complaint case no.8902/2017
titled as Fortune Wel Vs. M/s. Sharma Welding Store whereby
application under Section 311 Cr.PC for recalling of the
complainant was dismissed.
1. It is averred that on 30.09.2014, the respondent/
complainant filed a complaint case under Section 138 of
Negotiable Instruments Act against revisionist herein, which is
pending before the trial court.
2. It is submitted that revisionist moved an application under
Section 311 Cr.P.C. for recalling of CW-1 however, same was
dismissed by the trial court vide impugned order dated
06.06.2025.
3. It is submitted that feeling aggrieved against the said Order
dated 06.06.2025, the petitioner is preferring the present Revision
Petition.
GROUNDS OF REVISION:
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(i) It is submitted that the impugned order passed by the Ld.
Trial court is wrong and contrary to law, thus not legally
sustainable. The impugned order of Ld. Magistrate is highly
erroneous, illegal & improper.
(ii) It is further averred that trial court failed to consider the
deprivation of right of revisionist to cross-examine CW-1 on
material aspect will cause grave injustice to the revisionist.
(iii) It is further submitted that trial court failed to consider that
although revisionist have already availed sufficient opportunities
for cross-examination of complainant but the same could not be
conducted because of default on the part of previous counsel.
However, it is crucial right of revisionist.
(iv) It is submitted that denial of opportunity to
accused/revisionist to re-examine CW-1, would lead to denial of
right of fair trial.
(v) It is submitted that it is a settled legal preposition that a
failure to examine material witness is denial to fair trial i.e.
leading to unjust decision.
4. It is further submitted that revisionist has not filed any
other revision petition against the impugned order. It is prayed
that the revision petition be allowed and order dated 06.06.2025
be set aside.
5. The Ld. Counsel for the accused/ applicant has relied upon
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the following judgment:
(a) Siddharth Chandra v. State of NCT &Anr. 2018
SCC OnLine Del 11112
6. Respondent chose not to file reply but directly addressed
arguments. Respondent vehemently opposed the present revision
petition on the ground it is not maintainable as impugned order is
interlocutory in nature and submitted that it is filed merely to
delay the proceedings. It is further submitted that impugned order
was rightly passed by the Trial court vide detailed reasoned
order. It is further averred that ample opportunity have been
granted for the purpose of cross-examination of
CW-1/complainant but revisionist failed to do so and that is why
his application under Section 311 Cr.P.C was dismissed.
7. It is further submitted that impugned order was rightly
passed by the Trial court after considering facts and
circumstances of the case, conduct of the revisionist and material
on record.
8. It is further submitted that scope of interference in revision
petition is narrow and limited only for the purpose of considering
correctness, legality or propriety of any finding inter se an order
and as to the regularity of the proceedings of any inferior court.
It is further averred that the revisional court does not dwell at
length upon the facts of the case.
9. It is further averred that revisionist failed to disclose as to
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what facts and circumstances have not been dealt by Ld. Trial
Court. It is submitted that impugned order was passed after
considering all the material on record.
10. It is prayed that the revision petition filed by the revisionist
be dismissed with cost.
11. The Ld. Counsel for the accused/ applicant has relied upon
the following judgment:
(a) State (NCT of Delhi) v. Shiv Kumar Yadav &
Anr. (2016) 2 SCC 402
12. I have heard the arguments and perused the record and
relied upon citation carefully.
13. Revisionist has filed the present revision petition against
impugned order dated 06.06.2025 passed by Ld. Trial court,
whereby his application under Section 311 Cr.P.C for recalling
the CW-1/complainant/respondent for the purpose of cross-
examination was declined. It is submitted that the Trial court
failed to consider that the cross-examination is necessary for the
just decision of the case.
14. Before proceedings further, it is necessary to go through
the impugned order dated 06.06.2025 passed by Ld. Trial court
which is reproduced as under:-
“THE COURT OF SH ARVIND TOMAR
JMFC (NI ACT) 07, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
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CC No.8902/2017
FORTURE WEL
VERSUS
M/S SHARMA WELDING STORE
06.06.2025
ORDER
1. Vide this order, I shall decide the application filed
by the accused seeking recall of the complainant for
cross-examination at the stage of final arguments.
2. In the present application, it is submitted by the
accused that the complainant is a key witness whose
cross-examination could not be conducted earlier
allegedly due to negligence on part of his previous
counsel, lack of procedural knowledge, and absence of
proper legal guidance. It is further urged that the
complainant has not been cross-examined at all,
which, according to the accused, causes grave
prejudice to him and affects the fairness of the
proceedings.
3. Per contra, the complainant has strongly opposed
the application, asserting that the present request is
grossly delayed, devoid of merit, and an abuse of the
process of law, especially when the trial is at the stage
of final arguments.
4. I have perused the record and considered the
submissions made.
5. A brief factual matrix is necessary to appreciate the
context in which the present application has been filed:
• The complaint was filed on 30.09.2014, and the
accused was sum-moned on 26.10.2015. He appeared
only after issuance of NBWs on 16.10.2016.
• Notice under Section 251 CrPC was framed on
11.12.2017.
• The matter was listed for complainant’s evidence
and cross-examination of the complainant from
23.05.2018 onwards.
• Fourteen opportunities were granted to the accused
to cross-examine the complainant over a span of
nearly five years. On four occasions, the Court
specifically recorded that the opportunity was being
granted as a last and final chance.
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• Despite repeated opportunities, the cross-
examination was never con-ducted. Ultimately, the
right of the accused to cross-examine was closed on
25.03.2023.
• Statement of the accused under Section 313 CrPC
was recorded on 17.08.2024 after multiple dates.
• Thereafter, the matter was listed for defence
evidence, which the accused chose to waive on
21.01.2025.
• The matter was then listed for final arguments.
After three adjournments, on the last of which a final
opportunity was granted, the present application was
filed on the next date.
6. In light of the above, it is clear that the accused had
ample and repeated opportunities to cross-examine the
complainant, but chose not to avail the same. The
record reveals a pattern of non-serious conduct and
delay, despite express warnings of closure.
7. The present application seeks to recall the
complainant at a belated stage, not on the basis of any
inadvertent lapse of the Court, but squarely attributing
the delay to alleged negligence on part of previous
counsel. However, it is settled law that a litigant
cannot endlessly rely upon such pleas of “change of
counsel” or “mistake by previous lawyer” to re-open
closed stages of trial.
8. In State (NCT of Delhi) v. Shiv Kumar Yadav,
(2016) 2 SCC 402, the Hon'ble Supreme Court
emphasized that recall of witnesses cannot be
permitted mechanically or as a matter of right,
especially after closure of evidence and at the stage of
final arguments, unless there is demonstrable failure of
justice. In the present case, no such exceptional
circumstance has been made out.
9. Further, this Court cannot lose sight of the fact that
the trial has been pending since 2014—more than a
decade. The delay caused to the complainant and the
criminal justice system is considerable. Recalling the
complainant now, at the very end of trial, would not
only defeat the cause of timely justice but also
embolden non-diligent conduct.
10. Hence, in view of the above facts, repeated
indulgences already granted, and the settled legal
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position, no sufficient ground is made out to recall the
complainant for cross-examination at this belated
stage.
11.The application is accordingly dismissed.
12. Nothing stated herein shall be construed as a
comment on the merits of the case.
Dictated and announced in the open court
-sd-
06.06.2025 (Arvind Tomar)
JMFC (NI)07 (Central)
06.06.2025”
15. The first question to be decided by this Court is whether
the present revision petition is maintainable in view of the bar
created by provisions of Section 397(2) CrPC/438(2) BNSS.
Here, it will be relevant to reproduce relevant portion of Section
397 CrPC/438(2) BNSS which is as under:-
“Sec.397 Cr.PC/438(2) BNSS- Calling for records
to exercise powers of revision.-
(1) The High Court or any Sessions Judge may call
for and examine the record of any proceeding
before any inferior Criminal Court situate within its
or his local jurisdiction for the purpose of satisfying
itself or himself as to the correctness, legality or
propriety of any finding, sentence or order,
recorded or passed,and as to the regularity of any
proceedings of such inferior court, and may, when
calling for such record, direct that the execution of
any sentence or order be suspended, and if the
accused is in confinement, that he be released on
bail or on his own bond pending the examination of
the record. Explanation ................
(2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry,
trial or other proceeding.
(3) ……………”
16. In the judgment Amar Nath & Ors. V. State of Haryana &
Another, (1977) 4 Supreme Court Cases 137, the Hon'ble
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Supreme Court while interpreting “Interlocutory order” has
observed:-
“It seems to us that the term “interlocutory order” in
Section 397(2) of the 1973 Code has been used in a
restricted sense and not in any broad or artistic
sense. It merely denotes orders of a purely interim
or temporary nature which do not decide or touch
the important rights or the liabilities of the parties.
Any order which substantially affects the right of
the accused, or decided certain rights of the parties
cannot be said to be an interlocutory order so as to
bar a revision to the High Court against that order,
because that would be against the very object which
formed the basis for insertion of this particular
provision in Section 397 of the 1973 Code. Thus,
for instance, orders summoning witnesses,
adjourning cases, passing orders for bail, calling for
reports and such other steps in aid of the pending
proceeding, may no doubt amount to interlocutory
orders against which no revision would lie under
Section 397(2) of the 1973 Code.”
17. In the judgment of Neelam Mahajan & another Vs. The
State & Ors. dated 08.04.2016, Hon'ble Delhi High Court has
observed as under:-
“Applying these tests to the impugned order, this
Court finds that the order permitting the re-
examination of the petitioners is purely an
interlocutory order as it does not terminate the
proceedings but the trial goes on until it culminates
in acquittal or conviction. Furthermore, it is
impossible to spell out the concept of an
interlocutory order unless it is understood in
contradistinction to or in contrast with a final
order.”
18. Further, in the judgment of Varun Aggarwal Vs. State of
NCT of Delhi & Anr., Crl.M.C. No. 2424/2017, Hon'ble Delhi
High Court after referring the judgment passed by Hon'ble
Supreme Court in “Amar Nath & Ors. v. State of Haryana &
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Another” observed that the order passed by Ld. MM closing the
right of complainant to examine Forensic Expert was held to be
interlocutory order and consequently revision was held to be not
maintainable.
19. Similarly, in the judgment of Sethuraman Vs. Raja
Manickam, (2009) 5 SCC 153, the Hon'ble Supreme Court
observed that the order refusing to call the documents and
rejecting application U/S 311 CrPC are interlocutory orders and
as such, revision against these orders are clearly barred U/s
397(2) CrPC.
20. Now turning to the facts of the present case, the Trial
Court vide impugned order, declined the application for recalling
of complainant for the purpose of cross-examination by passing a
well reasoned order reflecting conduct of revisionist herein. The
impugned order does not terminate the proceedings. It is clear
that impugned order, declining the request to recall CW-1 for the
purpose of cross-examination is merely a procedural order and
therefore, is an interlocutory order in view of aforesaid settled
law and hence, the present revision petition is not maintainable
and is liable to be dismissed in view of bar created by Section
397 (2) CrPC/438(2) BNSS. Accordingly, the present revision
petition is liable to be dismissed being non-maintainable.
21. Even on merit, it is evident from record as well as
impugned order that ample opportunities have been granted to
the revisionist to cross-examine complainant but revisionist
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failed to so for the reasons best known to him and therefore, it
does not lie in his mouth to agitate that the cross examination of
complainant/respondent is essential for the fair trial, more so,
when revisionist himself failed to cross-examine complainant
despite 14 opportunities being granted to him for that purpose as
reflected in impugned order dated 06.06.2025. In my considered
view, giving more opportunities to revisionist to cross examine
the respondent would be a direct onslaught on the invioable right
of respondent for a speedy trial, which is otherwise also, a
mandate of statutory provisions of NI Act.
22. With these observations, present revision petition stands
dismissed being non-maintainable as well as on merits.
23. Revision Petition and application for stay is disposed off,
accordingly.
24. Trial Court Record be sent back with copy of the order.
25. Nothing said herein shall tantamount to have effect on the
merits of the case. Trial Court record be sent back alongwith the
copy of this order.
26. Revision file be consigned to Record Room after due
compliance.
Announced in the Open Court (Shilpi Jain)
on 21st day of August, 2025 Additional Sessions Judge-02,
Central District, Tis Hazari Courts, Delhi
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