Delhi District Court
Chandra Electronic Appliances Pvt. Ltd vs Havels India Ltd on 20 July, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR. DLCT01-007490-2024
CR No. 177/2024
1. Chandra Electronics Appliances Pvt. Ltd.
28, Indira Colony, Bani Park,
Jaipur, Rajasthan.
2. Mr. Lalit Dhoka
28, Indira Colony, Bani Park,
Jaipur, Rajasthan.
3. Mr. Mamta Dhaka
28, Indira Colony, Bani Park,
Jaipur, Rajasthan.
..... Revisionists
Vs.
Havels India Ltd.
904, Surya Kiran Building
9th Floor, Kasturba Gandhi Marg,
Connaught Place, New Delhi.
..... Respondent
Date of institution of Revision : 16.05.2024
Date on which order reserved : 20.07.2024
Date on which order pronounced : 20.07.2024
CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 1 of 9
ORDER
1. The present revision petition u/s. 397 Cr. P.C. has been filed against the impugned order dated 26.02.2024 passed by the Ld. Trial Court of Ms. Neha Goel, Ld. MM-02, (NI Act), Central, Tis Hazari Courts, Delhi in CC No. 318/2020 titled as 'Havels India Ltd.Vs. Chandra Electronics Appliances Pvt. Ltd', vide which the ld. Trial Court had closed the right of the revisionists to cross- examine the complainant.
2. The brief facts of the case necessary to decide the present revision petition are that the respondent has filed one complaint u/s. 138 NI Act against the revisionists. During the trial, vide order dated 29.05.2023, the ld. Trial Court framed notice u/s. 251 Cr. P.C. against the revisionists through V.C. and the matter was listed for CE on 18.10.2023. On 18.10.2023, an application was filed by the respondent for substitution of the AR which was allowed and since the main Counsel for revisionists was not available, last and final opportunity was granted to the revisionists to conduct the cross-examination. On 23.02.2024, the AR for the respondent filed the affidavit in evidence and the matter was listed for bringing the copy of the fresh evidence affidavit and for purpose fixed on 26.02.2024. On 26.02.2024, vide the impugned order, the ld. Trial Court holding that the revisionists are adopting CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 2 of 9 delaying tactics, closed the right of the revisionists to cross-examine the respondent.
3. Aggrieved by the said order, the revisionists have approached this Court on several grounds. It is contended by the ld. Counsel for revisionists that the ld. Trial court allowed the application for substitution of AR of respondent without hearing the revisionists. It is further contended that the affidavit in evidence was filed by the AR only on 23.02.2024 and he was directed to bring a copy of such evidence on next date of hearing for supplying to the revisionists. It is further contended that on 26.02.2024, the right to cross-examination was closed without giving ample opportunities to the revisionists to cross-examine the respondent. It is further contended that Counsel for revisionists was not available on 26.02.2024 as he has to appear before the Hon'ble NCLAT on 26.02.2024 for which the order-sheet is filed alongwith the revision petition. It is therefore, prayed that impugned order passed by the ld. Trial Court may kindly be set aside.
4. To the contrary, ld. Counsel for respondent directly argued the matter without filing any written reply. It is contended that the copy of affidavit in evidence was supplied to the Counsel for revisionists on 23.02.2024 through Whatsapp. It is further contended that despite ample opportunity on 26.02.2024, Counsel for revisionists did not appear and has not cross-examined the respondent and as such, the CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 3 of 9 revisionists are intending to delay the proceedings. It is prayed that the present revision petition may kindly be dismissed.
5. This Court has heard the rival contentions from both the sides and perused the judicial record.
6. In the present case, vide impugned order dated 26.02.2024, the ld. Trial Court while observing that the revisionists are employing delaying tactics as they have not furnished the original signed notice u/s. 251 Cr. P.C. and the bail bonds after despite repeated directions and despite giving last and final opportunity, they have failed to to cross-examine the respondent, the right of the revisionists was closed to cross-examine the respondent.
7. It is needless to mention that cross examination of the complainant is an invaluable right which is necessary for eliciting the truth and also for establishing the defence. Cross examination is the essential tool for proper appreciation and adjudication of a case. For dispensing effective and efficient justice, cross examination of a witness is must.
8. The purpose of cross-examination of a witness has been succinctly explained by the Constitution Bench of the Hon'ble Supreme Court in Kartar Singh v. State of Punjab (1994) 3 SCC 569 as follows:
"278. Section 137 of the Evidence Act defines what CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 4 of 9 cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character."
9. The aforesaid view is reiterated by the Hon'ble Apex Court in Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104 wherein it is observed:
"24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in- chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion."
10. The importance of cross-examination of witness, therefore, cannot be undermined. The fate of the criminal trial CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 5 of 9 depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of the witness is fit to be rejected or accepted.
11. Affording proper opportunity to cross-examine a witness, sub-serves the requirement of principles of natural justice but also guarantee an important right which is given to the accused persons to defend themselves appropriately. Cross-examination of the witnesses, in the process, is an important facet of this right. It is one of the inalienable component of the right to defence, which is also part and parcel of right to fair trial, which in turn, is a component of right to dignified life guaranteed under Article 21 of the Constitution of India.
12. Every person has a right to a fair trial by a competent Court in the spirit of the right to life and personal liberty which includes his right to defence and cross examination of witnesses in trial. Credibility of any witness can be established only after the said witness is put to cross- examination by the accused person.
13. In Vimal Khanna Vs State, CRL. M.C. 4996/2018, decided on 01.10.2018, Hon'ble High Court of Delhi held that CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 6 of 9 denial of opportunity to cross examine the witnesses violates the Constitutional guarantee to an accused and vitiates the trial. Vimal Khanna (Supra) has been followed in Mohd. Gulzar Vs The State (GNCTD), 2018 (4) JCC 2291 (DHC), wherein after recording that the counsel for the accused was not present on three consecutive dates to cross examine the witness, the Court held that since the right of cross examination is a valuable right, the child's right under Section 33(5) of the POCSO Act has to be balanced with the aforesaid rights of the accused and thus permitted one more opportunity to the accused to cross examine the alleged victim.
14. In the present case, it is important to note that the application for substitution of AR of the respondent was allowed on 18.10.2023 and the evidence affidavit was filed by the AR on 23.02.2024 and on the same day, the ld. Trial Court directed the AR to bring the copy of fresh evidence affidavit on next date of hearing to supply the revisionists. Though, the respondent has allegedly supplied the copy of evidence affidavit through Whatsapp on 23.02.2024, however, it is also to be noted that very short date of hearing i.e. 26.02.2024 was given. Unfortunately, the Counsel for the revisionists was not present on 26.02.2024 as he was stated to be appearing before the Hon'ble Bench of NCLAT. The copy of order-sheet dated 26.02.2024 of the Hon'ble Principal Bench of NCLAT has been filed CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 7 of 9 alongwith the present revision petition. As such, Counsel for revisionists has shown sufficient reason for not conducting the cross-examination of the respondent before the ld. Trial Court on 26.02.2024 but this Court can not be oblivious of the fact that the revisionists have not filed the original signed notice u/s. 251 Cr. P.C. as well as bail bonds before the ld. Trial Court till date, though they have submitted the same vide e-mail dated 17.10.2023. There seems to be considerable delay in submitting the said documents.
15. Be that as it may, it is also important to observe that in cases u/s. 138 NI Act, the importance of cross-examination is much more higher as the burden of disproving the case of the complainant is upon the accused as the statutory presumptions u/s. 118 and 139 NI Act are standing against him.
16. This Court is of the view that for proper and effective adjudication of the present case and in the interest of justice, one opportunity may be afforded to the revisionists to further cross-examine the respondent subject to the cost of Rs. 5,000/- to be paid to the respondent. The Ld. Trial Court shall fix a date and subject to payment of cost, afford one opportunity to the revisionist for further cross- examination of the respondent. No unnecessary adjournment shall be entertained. If the cross-examination could not be completed in one day, it shall be continued on CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 8 of 9 day to day basis till it is concluded.
17. The present revision petition is allowed on above terms.
The parties are directed to appear before the Ld. Trial Court on 27.07.2024 for further proceedings.
18. The copy of this order be sent to the ld. Trial Court for information and necessary action.
19. Revision file be consigned to the Record Room.
SUSHIL Digitally
by SUSHIL
signed
Announced in the open ANUJ ANUJ TYAGI
Date: 2024.07.20
Court on 20th July, 2024 TYAGI 15:41:33 +0530
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
20.07.2024(VR)
CR No. 177/2024 Chandra Electronic Appliances Pvt. Ltd. And Ors. Vs Havels India Ltd. Page No. 9 of 9