Final Order 5

Order Details: COPY OF ORDER
Pdf Text: 1.
Cr. Rev. 274/2023
ANITA SANTHOSH
Vs.
GB ENTERPRISES
PS: RANI BAGH
31.10.2023
Present: Sh. Rohit Rattu, Ld. Counsel for the revisionist.
Ms. Meenal Duggal and Sh. Akash Rana, Ld. Counsel(s) for
the respondent.
1. Arguments heard on the revision petition. Put up for order at
3.00 PM today itself.
(JITENDRA SINGH)
ASJ (Electricity)/(NW)
Rohini Courts, Delhi
31.10.2023
At 3.00 PM.
Present: None.
2. This is the revision petition under Section 397 of The Code
of Criminal Procedure, 1973 against the order dated 01.02.2023, passed
by Ld. MM (NI Act), Digital Court-01, N-W, Rohini Courts, Delhi in
case bearing CC no. 34/2022 titled as GB Enterprises Vs. Ms. Anita
Santhosh, whereby the right to file the application under Section 145(2)
of the Negotiable Instrument Act (hereinafter referred to as 'NI Act')
was closed by the Ld. Trial Court.
3. It is submitted by the Ld. Counsel for the revisionist that
opportunity was granted to the revisionist to file the application under
Section 145 (2) of NI Act before the Ld. Trial Court. However, accused
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could not appear before the Ld. Trial Court on the said date as he had
gone to hospital for vaccination of her child. Therefore, opportunity to
file the said application was closed. It is further submitted that she will
be careful in future and requests that in the interest of justice one
opportunity may be granted for cross examination the complainant and
witnesses. Therefore, the present revision petition may be allowed.
4. Per contra, the present revision petition is vehemently
opposed by the Ld. Counsel for the respondent. It is submitted by the Ld.
Counsel for the respondent that the order passed by Ld. Trial Court is
correct in the eyes of law and does not demand any interference of this
Court. It is further submitted that the present revision petition is not
maintainable as the said order is interlocutory in nature. It is further
submitted that the there is deliberate delay on the part of the revisionist.
Therefore, the present revision petition is liable to be dismissed.
5. Trial Court record reveals that the notice in the instant
matter was framed on 19.07.2022 and the accused was granted an
opportunity to move an application under Section 145(2) of NI Act. For
the next three dates of hearing the matter was adjourned as talks for
settlement was going on between the parties. Thereafter, the accused has
failed to file the application, the opportunity was closed by the impugned
order. The Hon'ble Supreme Court in case titled as Mandvi Cooperative
Bank Limited Vs. Nimesh B. Thakore, (2010) 3 SCC 83 has
categorically held that the Trial Court would be obliged to summon the
witness and shall give the opportunity to the accused for cross
examining the witness on the application under Section 145(2) of NI Act.
The relevant extract is reproduced below for ready reference:-
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“30.....It was, therefore, beyond doubt that in the
event an application is made by the accused, the
court would be obliged to summon the person giving
evidence on affidavit in terms of Section 145(1)
without having any discretion in the matter...”.
6. Similarly, the Hon'ble High Court of Delhi, while placing
reliance on the judgment of Mandvi Cooperative (supra) in Dhirender
Sharma Versus The State (Govt. of NCT of Delhi) & anr. 2020
LAWPACK (Del) 76028, has granted opportunity to the accused to
cross examine the complainant or any other witness. The relevant extract
is reproduced below for ready reference:-
“11...Looking into the mandate of Section 145(2) NI Act as
encapsulated in Mandvi Cooperative Bank Limited (supra)
and Indian Bank Association (supra) and the facts and
circumstances of this case, I am of the view that the trial
court ought to have allowed the petitioner's application
filed under Section 145(2) N.I.Act.
12. Looking into the facts and circumstances of the case,
the impugned order is set aside and the present petition is
allowed, subject to payment of costs of Rs. 10,000/- by the
petitioner out of which Rs. 5,000/- shall be paid to the
complainant and Rs. 5,000/- shall be deposited with the
“Delhi High Court Legal Services Committee” within a
period of two weeks from the passing of the order.
13. The petitioner's application under Section 145(2)
NI Act filed on 11.01.2018 is allowed. The trial court shall
grant the petitioner an opportunity to cross-examine the
complainant or any other witness examined by him on one
date only unless in the opinion of the Court on more date is
required for completion of the cross-examination. Learned
counsel for the petitioner undertakes not take any
adjournment in this regard...”.
7. Though there has been delay on the part of the revisionist to
file the application under Section 145(2) of NI Act. However, in view of
ratio of the judgment(s) in case titled as Dhirender Sharma (supra)
and Mandvi Cooperative Bank Limited (supra), one last and final
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opportunity is being granted to the revisionist to file the application
under Section 145(2) of NI Act on the next date of hearing before the Ld.
Trial Court with advance copy to the opposite party, subject to the cost
of Rs. 28,000/- to be paid to the respondent.
8. With these directions, the instant revision petition stands
disposed of. The revision petition be consigned to record room after
due compliance. TCR alongwith the copy of this order be sent to the
Court concerned.
(JITENDRA SINGH)
ASJ (Electricity)/(NW)
Rohini Courts, Delhi
31.10.2023
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