Delhi District Court
Ramesh Kumar Malhotra vs Harish Satija on 25 August, 2022
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTHWEST
DISTRICT, ROHINI COURTS, DELHI
Crl. Revision No. 192/2022
CNR No. DLND010071422022
Ramesh Kumar Malhotra
S/o Shri Ved Parkash Malhotra
R/o 3255, Second Floor
Mahindra Park Shakur Basti
Delhi110034
....... Revisionist
Versus
Harish Satija
S/o Late Shri Govind Ram
R/o House No. 3183
Mahindra Park, Delhi110034
...... Respondent
Date of filing : 21.07.2022
Date of arguments : 18.08.2022
Date of order : 25.08.2022
ORDER
1. The revisionist has filed this criminal revision petition under Section 397 Cr.P.C. against the order dated 23.04.2022 (hereinafter referred to the impugned order) passed by Ld. MM (NI Act) N/W, Rohini, Delhi in a case bearing Ct. Case No. 1466/2017 titled as Harish Satija Versus Ramesh Kumar Malhotra, whereby the Ld. MM dismissed the application u/s 311 Cr.PC of the revisionistherein/accusedtherein and the exemption application of the accused/revisionist was also dismissed with cost of Rs.2000/ to be paid to the complainanttherein.
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2. The brief facts, as set out in the present revision petition, are that the revisionistherein had been arrayed as an accused in the aforesaid case, filed by the respondentherein u/s 138 NI Act. In the said complaint case, the Ld. MM passed the impugned order dt.23.04.2022. Aggrieved by the said impugned order, the revisionist has preferred the present revision petition on the grounds among others that Ld. MM has failed to appreciate that only one opportunity was granted to the revisionist for crossexamination of the complainant for 01.06.2020 and there was 'National Lockdown' on that day and courts were closed on that day. The revisionist has briefly mentioned all the facts to the Ld. MM on 23.04.2022 but without going into merit of the application under Section 311 CrPC, the Ld. MM dismissed the said application of the revisionist. The impugned order was passed without taking into consideration the facts as well as the law in their correct perspectives. No opportunity was given to the revisionist to defend his case. The revisionist has good case to prove the illegal and mala fide intention of the respondent who misused the cheque of the revisionist. In the absence of the cross examination of the complainant by the revisionist, the case is likely to be hampered despite there being sufficient and cogent material for proving the illegal and mala fide intention of the respondent. The revisionist has prayed to set aside the impugned order dt. 23.04.2022 whereby the application u/s 311 CrPC was dismissed and cost of Rs.2000/ was also imposed upon the revisionist.
3. The respondent has filed reply to the revision petition wherein he raised preliminary objections that the revision petition has not been filed as per law and the revisionist has also not approached this Cr. Rev. No.192/2022 Ramesh Kumar Malhotra V. Harish Satija Page No. 2 of 7 court with clean hands and concealed the material facts from this court. The case is at the stage of defence evidence and just to delay the proceedings of the case, the revision petition has been filed with mala fide intention. The Ld. MM has issued bailable/nonbailable warrants against the accused/revisionist a number of times. The revisionist has approached this court with his wrong address where he is not residing now. In parawise reply, the respondent has stated that the complaint case was filed in February 2017 and the revisionist did not appear even after service of summons to him on the very first date i.e. 01.07.2017. The revisionist instead of proceeding with the case sought adjournments. On 22.09.2018, even after allowing the application u/s 145 (2) N.I. Act, the revisionist opted not to crossexamine the complainant and sought his exemption from personal appearance. On 25.01.2019, the complainant was only partly crossexamined and adjournment was sought due to unavailability of the counsel of revisionist after lunch. The date 20.02.2019 was fixed for crossexamination of the complainant as per the convenience of the counsel of the parties. However, on 20.02.2019, neither the accused nor his counsel was present and the matter was awaited till 01.00 pm. Bailable warrants of the accused / revisionist was issued and his right to crossexamine was closed. On the next date of hearing i.e. 06.07.2019, revisionist sought adjournment due to unavailability of his counsel, which was opposed. On 27.01.2020, the revisionist filed an application u/s 311 CrPC for further cross examination of the complainant, which was allowed subject to cost. Thereafter, due to lockdown, virtual hearing took place in the matter. Even, in the virtual hearing on 01.12.2021 the revisionist did not appear Cr. Rev. No.192/2022 Ramesh Kumar Malhotra V. Harish Satija Page No. 3 of 7 and his right to crossexamine the complainant further stood closed and bailable warrants were also issued against the revisionist/ accused. The conduct of the revisionist was to delay the proceedings and complainant instead of getting relief was humiliated and harassed by the revisionist. After lockdown, 23.04.2022 was the physical hearing before the Ld. MM and the revisionist again filed an application u/s 311 CrPC. The other averments made in the present revision petition against the respondent have been denied by the respondent in his reply to the revision.
4. I have heard the Ld. Counsel for the parties and I have gone through the impugned order dt. 23.04.2022 and also judgments relied upon by the Ld. Counsel for the parties as well as materials available on record.
5. Ld. counsel for the revisionist argued that after allowing the application u/s 311 CrPC on 27.01.2020 only one opportunity was given for 01.06.2020 to the revisionist but on 01.06.2020 the courts were closed due to national lockdown. Thereafter, the proceedings were held through virtual hearings. The application u/s 311 CrPC was dismissed without going into merits of the said application on 23.04.2022, which was the first date of physical hearing. The revisionist may be allowed to crossexamine the complainant who is material witness to defend his case. The Ld. Counsel for the revisionist further argued that there is no liability of the revisionist and no case is made out against the revisionist for the cheque amount. Thus, for the just and proper adjudication of the case, the application u/s 311 CrPC may be allowed and impugned order may be set aside. In support of his arguments, Ld. Counsel for the revisionist has relied upon the judgments in the cases of Hoffman Cr. Rev. No.192/2022 Ramesh Kumar Malhotra V. Harish Satija Page No. 4 of 7 Andreas Vs. Inspector of Customs, Amritsar (2000)10 SCC 430; Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi AIR 1999 SC 2292; Shailendra Kumar Vs. State of Bihar and Ors. AIR 2002 SC 270 and in the case of Mannan SK. Vs. State of West Bengal AIR 2014 SC 2950.
6. Ld. Counsel for the respondent argued that the respondent herein filed a case u/s 138 of N.I. Act. The date of 20.02.2019 was given as per the convenience of both the parties but on 20.02.2019, no one appeared on behalf of the accused and right of the accused to cross examine the complainant was closed and bailable warrants was issued against him. The case is at the stage of defence evidence and the revisionist is trying to delay the proceedings of the case. Bailable/non bailable warrants against the accused/revisionist were also issued. The application u/s 311 CrPC of the revisionist was allowed subject to cost of Rs.2000/ on 27.01.2020. The right to crossexamine the complainant was again closed on 01.12.2021. The complaint case was filed in February 2017 and the revisionist did not appear on many dates of hearings and due to his delaying tactics the complainant is suffering. Therefore, the Ld. MM rightly dismissed the application u/s 311 CrPC of the revisionistherein. In support of her arguments, Ld. Counsel for the respondent has relied upon the judgment in the case of Varsha Garg V. The State of Madhya Pradesh & Ors. in Criminal Appeal No. 1021 of 2022 decided by the Hon'ble Supreme Court of India on 08.08.2022.
7. Perusal of record reveals that on 27.01.2020, the application u/s 311 CrPC of the accusedtherein was allowed subject to cost of Rs.2000/. In the said order dt.27.01.2020, the Ld. MM clarified that Cr. Rev. No.192/2022 Ramesh Kumar Malhotra V. Harish Satija Page No. 5 of 7 only one opportunity shall be afforded to the accused to crossexamine the complainant and listed the matter for 01.06.2020. Thereafter, during the period pandemic of Covid19, the matter was adjourned en bloc time to time as per the directions of the Hon'ble High Court and matter was taken up through virtual hearing on 27.07.2020 but no one was present on that date. The accused neither appeared on 22.09.2020 nor on 01.12.2021. On 01.12.2021, as no one appeared on behalf of the accused, his right to crossexamine the complainant stood closed and bailable warrants were ordered to be issued against him for 23.04.2022. On 23.04.2022, accusedtherein did not appear but his counsel moved an exemption application for the accused. However, the said application stood dismissed with the cost of Rs.2000/ to be paid to the complainant. The Ld. MM also dismissed the application u/s 311 CrPC of the accused therein and listed the matter for DE for 29.08.2022.
8. In view of the above facts & circumstances of the case, arguments of the Ld. Counsel for the parties, the impugned order and the materials on record, I am of the considered opinion that the spirit of Section 311 CrPC is to do justice and to prevent failure of justice. It was stated that after allowing the application u/s 311 CrPC of the accused therein, the pandemic of Covid19 started and the matters were adjourned en bloc, as such, crossexamination of the complainant could not be conducted on time. The crossexamination of the complainant who is the material witness is essential for the just and proper adjudication of the case. Therefore, considering the above discussion and in the interest of justice, one last opportunity should be given to the revisionistherein to crossexamine the complainant. The judgment relied Cr. Rev. No.192/2022 Ramesh Kumar Malhotra V. Harish Satija Page No. 6 of 7 upon by the Ld. Counsel for the respondent is distinguishable from the facts and circumstances of the present case. Accordingly, the impugned order dt. 23.04.2022 dismissing the application u/s 311 CrPC is set aside and this revision is allowed subject to cost of Rs.5,000/, which shall be paid by the revisionist to the complainanttherein/respondentherein on the next date of hearing before the Ld. MM. The parties as well as counsel are directed to appear before the Ld. MM for crossexamination of complainant/respondentherein on the date already fixed for 29.08.2022. Trial Court Record be sent back along with copy of this order to Ld. Trial Court. Revision petition file be consigned to Record Room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2022.08.25
17:09:19 +0530
Announced in the open court (YASHWANT KUMAR)
today on 25th August 2022 Principal District & Sessions Judge
NorthWest, Rohini Courts, Delhi
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