Delhi District Court
Netrapal Singh vs Umesh Kumar on 30 October, 2013
1
IN THE COURT OF SH. J. R. ARYAN : DISTRICT & SESSIONS
JUDGE : NORTH-EAST DISTRICT : KARKARDOOMA COURTS :
DELHI
CR No. 72/13
Unique ID Number: 02402R0344722013
Netrapal Singh
S/o Shri Budhpal Singh,
R/o 134-C, 2nd Floor, Gali No.4/2, Sadatpur, Karawal Nagar Extn.,
Delhi-110094.
...............REVISIONIST
Versus
Umesh Kumar
S/o Shri Rajender Kumar,
R/o 1450/2, East Jyoti Nagar, Loni Road, Shahdara,
Delhi-110032.
..............RESPONDENT
Date of institution of case : 23.10.2013
Date of reserving the case for Order : 30.10.2013
Date of passing of orders : 30.10.2013
J U D G E M E N T:
1) Accused Netrapal being prosecuted and put on trial for an offence u/S 138 of N.I. Act was found by ld. ACMM, North-East District, Karkardooma Court to have failed to move an application u/S 145 (2) of N.I. Act disclosing the defence and the ground on CR No. 72/13 Page 1/4 2 which would have cross examined the complainant, an opportunity to cross examine complainant closed vide order dated 06.09.2013, examination of accused u/S 313 CrPC was recorded on 18.09.2013 and then matter came up for final hearing when accused moved an application praying recalling of the complainant for cross examination and application was dismissed on ground that since earlier accused had failed to disclose the defence which he would have prosecuted by cross examining the complainant, there was no point in allowing his prayer to recall the complainant for cross examination, accused has filed present revision petition. Today both the parties appearing with their advocates have been heard.
2) Accused was summoned on the basis of pre-summoning evidence brought on record by the complainant by his affidavit evidence which is Ex.CW1/A and documents. The cheque for Rs. 90,000/- dated 19.03.2013 drawn in favour of complainant Umesh Kumar subject matter of this case was alleged to have been drawn and issued to discharge a friendly loan liability. Notice in terms of Section 251 CrPC when given to accused on 25.07.2013 he came up with a plea disowning liability for the cheque as alleged in the complaint and pleaded that he was member of a chit being organized by complainant. He had handed over cheque CR No. 72/13 Page 2/4 3 as security in that chit transaction and rather cheque was given in custody of a person called Lala ji residing in Loni. He further pleaded that though he had already paid amount of the chit transaction, the cheque had been misused. In view of this categoric defence I do not find court required really a further defence plea to be disclosed by moving a separate application u/S 145 (2) of N.I. Act. Court itself ought to have called upon accused to cross examine the complainant to put any such specific defence. Without an opportunity to prosecute that defence accused would be denied a fair trial to defend himself and in those circumstances denying prayer of accused for recalling of the complainant for his cross examination was unjust. The order impugned deserves to be set aside. Today counsel Sh. Ashish Nigam appearing on behalf of complainant did concede that complainant ought to be allowed for cross examination but then he pointed out that accused had been delaying the trial and he should be put to certain terms by cost. I did consider this plea. The present case complaint had been filed in May 2013. While denying prayer of accused for recalling of complainant for cross examination vide order impugned, since further adjournment was prayed on behalf of accused for final arguments, a cost of Rs. 2000/- was imposed and that admittedly has been paid. That CR No. 72/13 Page 3/4 4 takes care of the submission made by ld. counsel. Order impugned suffers serious irregularity in exercise of jurisdiction which may result in defeat of justice and is accordingly set aside. Revision is accordingly allowed.
3) Ld. trial court shall direct complainant to be present on a date to be given by the court and accused shall take up cross examination on the complainant on that date. Accused shall ensure that no adjournment is prayed on his behalf on that date.
4) Trial court record with a copy of this order be sent back.
Parties shall appear before the ld. trial court on 01.11.2013.
5) Revision file be consigned to record room.
Announced in the open Court (J. R. Aryan)
On this 30th day of October, 2013 District & Sessions Judge,
N-E Dist./Karkardooma Courts,Delhi
CR No. 72/13 Page 4/4