Final Order 6

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. APARNA SWAMI, ASJ-07
PATIALA HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
CNR No.DLND01-006884-2024
Criminal Revision No. 463/2024
IN THE MATTER OF :
Gaurav Gagneja
S/o Sh. Ashok Gagneja
R/o 11/9 Punjabi Bagh Extension,
New Delhi. ......... Revisionist.
Vs.
1. State
2. Vinod Kumar Dhir
S/o Late R.S. Dhir
R/o D-64, Anand Niketan,
New Delhi-110021. ......... Respondent.
Date of institution : 28.08.2024
Date on which order reserved : 03.04.2025
Date of order : 14.04.2025
Final decision : Revision is allowed.
ORDER ON REVISION PETITION
1. This revision petition is filed by the revisionist Gaurav
Gagneja, against the impugned order dated 04.07.2024, passed in
the complaint case bearing no.1885/2021 titled as
‘Mr. Vinod
Kumar Dhir Vs. Mr. Gaurav Gagneja, by the court of learned
Judicial First Class Magistrate (NI Act), Digital Court-01, Patiala
House Courts, New Delhi.
2. Brief background of the case:
A complaint case was filed in the court of the learned
Metropolitan Magistrate (NI Act), Digital Court-01, Patiala
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House Courts, New Delhi, under Section 138 of the Negotiable
Instruments Act, 1881
(in short the ‘NI Act’) . On admission of
the complaint, summons were ordered to be issued to the
revisionist/accused. As offence being bailable in nature, on
appearance of the revisionist/accused before the trial court,
revisionist/accused was admitted to bail subject to furnishing of
bail bond in sum of Rs.50,000/- with one surety of like amount.
3. On 06.12.2022, a notice under Section 251 of Code of
Criminal Procedure, 1973
(in short ‘Cr.P.C.’), was framed upon
the revisionist/accused, to which he pleaded not guilty and
claimed trial. Thereafter, statement of the revisionist/ accused
was recorded under Section 294 of the Cr.P.C., and the witnesses
at serial no. 2, 3, 4 & 5 in the list of witnesses were dropped. On
the same date of hearing, Ld. Counsel for the accused orally
requested the Ld. Trial Court to grant leave to cross-examine the
complainant. The learned Magistrate heard the arguments and
observed that: “
the accused has a valid defence to make and in
order to prove the same, cross examination of the complainant
witnesses is essential.” Therefore, on the oral request of the
revisionist/accused, the plea of the accused under Section 145(2)
of the NI Act was allowed, and the matter was put up for cross-
examination of the complainant.
4. The perusal of the record further reveals that on
18.01.2023, the matter was fixed for cross-examination of the
complainant, but due to non-availability of the Ld. Counsel for
the accused on the date of hearing, cross-examination was not
done and final opportunity was granted to the revisionist to cross-
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examine the complainant.
5. As the complainant was already cross-examined at length
with respect to the contents of the acknowledgment letter, vide
order dated 09.04.2024, accused/ revisionist was given an
opportunity to cross-examine the complainant witness to the
limited extent of disputing the genuineness of the original
acknowledgment letter accordingly, application under Section
311 of Cr.P.C. was allowed by the Ld. Trial Court and matter was
fixed for 02.05.2024. On 02.05.2024, at joint request matter was
adjourned for 04.07.2024.
6. The perusal of the file reveals that as per the order sheet
dated 04.07.2024, the CW-1 was examined, cross-examined, and
discharged on the application under Section 311 of Cr.P.C., which
was allowed by order dated 09.04.2024. The matter was then
listed for recording of statement of accused on 23.07.2024.
7. Being aggrieved by the order dated 04.07.2024, the present
revision petition is filed before this court alleging that the Ld.
Trial Court failed to exercise its judicial discretion in the present
matter and has perversely passed the impugned order dated
04.07.2024. It is further contended by the Ld. Counsel for the
revisionist that the Ld. Trial court has erred in recording on the
order sheet dated 04.07.2024 that the CW-1 has been cross-
examined and discharged, the counsel for the accused was not
present physically in the court at that time of hearing and no
cross-examination of the complainant took place.
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8. The Ld. Counsel for the revisionist further submits that as
the evidence on record mentions the cross-examination as ‘nil’,
therefore, the recording of the order sheet that the cross-
examination was conducted is in itself false and contradictory.
Thus, it is prayed to set aside the order dated 04.07.2024 and give
an opportunity to the revisionist to cross-examine CW1.
9. The present revision petition is opposed by the respondent
no. 2/ complainant on the ground that the Ld. Trial Court rightly
closed the right of the revisionist to cross-examine the respondent
no. 2, as ample opportunities were given to the accused/
revisionist to cross-examine the complainant/ respondent, but the
accused kept on delaying the matter. Therefore, the Ld. Trial
Court was constrained to close the right of the accused/
revisionist on 04.07.2024.
10. The Ld. Counsel for the respondent no. 2 further contends
that the revisionist/ accused has not approached this court with
clean hands and has made false statement by submitting that the
impugned order dated 04.07.2024 was passed in the absence of
the presiding officer.
11. The Ld. Counsel for the respondent no. 2 also submits that
as the present revision petition is filed merely to delay the
proceedings before the Ld. Trial Court. Therefore, it should be
dismissed with exemplary cost.
12. This court observes, after the perusal of the material on
record, the grounds of revision petition and the conduct of the
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proceedings on the said date, that the right to cross-examine
CW-1 was closed by the Ld. Trial Court. This court is of the
considered view that the right to cross-examination is vital
component of fair trial, and denial of such right, especially
without considering the valid explanation furnished through
appearance, amounts to serious procedural lapse.
13. It is settled law that procedural irregularities which
prejudice the accused in the conduct of the defence are liable to
be rectified. The failure of the Ld. Trial Court to accommodate
the request or record the circumstance appropriately has caused
manifest injustice. It is also clear from the record that, though the
order sheet dated 04.07.2024 mentions that cross-examination
was conducted, the evidence shows that the counsel for the
revisionist/ accused was not present physically and no cross-
examination of complainant was conducted.
14. Accordingly, the present revision petition is allowed and
the impugned order dated 04.07.2024 to the extent that it records
the examination, cross-examination and discharge of CW-1
without actual cross-examination is hereby set aside.
15. The revisionist/ accused Gaurav Gagneja is granted last
and final opportunity on the next date of hearing i.e. 23.04.2025,
to cross-examine CW-1 i.e. the complainant/ respondent in terms
of the application under Section 311 of Cr.P.C., which was
allowed vide order dated 09.04.2024 to the limited extent of
disputing the genuineness of the original acknowledgment letter.
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16. The parties are directed to appear before the Ld. Trial
Court on 23.04.2025.
17. A copy of this order along with trial court record be sent to
the concerned Ld. Trial Court.
18. The revision file be consigned to Record Room.
Dictated & Announced
in the open court
(Aparna Swami)
Additional Sessions Judge-07
Patiala House Courts/New Delhi
14.04.2025
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