Delhi District Court
Ashok Kalra vs Mahesh Mittal on 22 March, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Rev. No.25/13 (of 23.01.13) Date of Institution:08.08.2012
RBT Date of Judgment: 22.03.2013
Ashok Kalra,
S/o Sh. N.D. Kalra,
Proprietor of M/s Patrisia Pharmacuticals,
2197/3, Chuna Mandi,
Paharganj, Delhi. ......Petitioner
Versus
Mahesh Mittal,
S/o Sh. Suresh Mittal,
R/o C9/209, Sector - 7,
Rohini, Delhi. .......Respondents
J U D G M E N T
Present revision petition has been filed challenging order dt.10.07.2012 passed by learned Chief Metropolitan Magistrate - 01 (Central), in complaint case no.751/10 (date of institution 09.07.2010) titled as Mahesh Mittal Vs. Ashok Kalra.
Vide impugned order dt.10.07.2012, learned Additional Chief Metropolitan Magistrate, dismissed application U/s 311 Cr.P.C. filed by the accused - petitioner herein for recalling of the complainant - CW1 for re examination / cross examination, has been dismissed while observing that the complainant was cross examined at length by learned counsel for accused, but Crl. Rev. No.25/13 1 learned counsel did not subject the complainant on any of the aspects on which he is sought to be subjected to cross examine once again. While referring to the decision in AIR 1991 SC 1346, learned Trial Court has dismissed the application observing that the accused has already cross examined the complainant regarding his employment, royalty and loan. Learned Trial Court has also observed in the impugned order that the factum of issuance of cheques in question is not in dispute and the same raises presumption U/s 139 of Negotiable Instruments Act. This presumption has to be rebutted by the accused - petitioner, but in this regard the accused has already come up with the plea that the complainant has unauthorisedly and illegally used the cheques in question. As further observed by the Trial Court, accused - petition has already examined himself as his own witness.
3. Learned counsel for petitioner has contended that learned Trial Magistrate should have allowed the petitioner to further cross examine the complainant as he could not be subjected to cross examination on significant aspects. Today, in the course of arguments, learned counsel for petitioner has submitted that the complainant is intended to be cross examined as to the date of acceptance of the cheques by the complainant, in view of his allegations in the complaint and on the point as to whether he had ever earlier asked the accused - petitioner herein, for payment of any of these three cheques, to which the complaint pertains; and as to the mode of loan he is alleged to have advanced to the accused. Crl. Rev. No.25/13 2
4. In the application U/s 311 Cr.P.C., the accused - petitioner alleged that on 28.04.2011 when the complainant was earlier cross examined, he could not be subjected to cross examination on the following certain important and relevant questions :
1. on the point of appointment of complainant as Zonals Sales Manager w.e.f. February,2008;
2. about alleged entitlement of the complainant to royalty;
3. about loans alleged to have been advanced by the complainant to the accused;
4. about unauthorised and illegal use of cheques in questions in the complaint.
It may be mentioned here that accused has been facing trial in the said complaint U/s 138 of Negotiable Instruments Act on the allegations that three cheques each for a sum of Rs.25,000/, drawn by the accused in favour of the complainant - respondent herein when presented for encashment were received back as dishonored with reasons 'stopped payment by draft', vide cheque return memo dt.22.04.2010 and despite legal notice, the accused failed to discharge the liability.
Upon service of notice, the accused pleaded not guilty and claimed trial. At the same time, he put forth his defence in the manner as : "It is submitted that complainant had been working as a Manager in the accused firm. The accused had issued the said three blank cheques for office purpose. In March, 2010, the accused became aware of the fraud cheating and criminal breach of trust and lodged a criminal complaint dt. Crl. Rev. No.25/13 3 12.04.2010 before SHO PS Paharganj as well as criminal complaint to the Commissioner of Police. In view of this dispute, the complainant having malafide intention presented all the three cheques with the bank for encashment. I want to cross examine the complainant witnesses." When the complaint was listed for trial, complainant stepped into witness b ox as his own witness as CW1 and he was cross examined by learned counsel for the accused on 28.04.2011.
5. A perusal of cross examination of the complainant would reveal that in his cross examination the complainant stated to have received three cheques against salary and royalty for the months of October, November and December,2009 but he displayed ignorance as to when these cheques were issued by the accused - petitioner to him.
As regards loan, the complainant stated in his cross examination to have advanced the same for a sum of Rs. 2 lacs in cash and a sum of Rs.1,17,000/ by way of cheque from the account of his wife. He displayed ignorance about the exact date of advancing of loan to the account - petitioner for the purpose of property dispute in Noida.
As regards presentation of the cheques, the complainant stated in its cross examination that he presented the same for encashment on or about 20/22.07.2010. He so presented all the three cheques because he had left the firm at that time. He denied to have presented the cheques only on filing of a complaint by the accused - petitioner against him. In the next sentence, he Crl. Rev. No.25/13 4 stated that the cheques were present by him so late at the request of the accused.
In P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242 referred to by learned counsel for petitioner, while referring to various earlier decisions, the Hon'ble Apex Court observed that the object under lying Sec.311 is to prevent failure of justice on account of mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses.
In view of the well settled law on exercise of powers U/s 311 Cr.P.C., applying the same to the facts of the present case and having regard to cross examination of the complainant already conducted by learned counsel for petitioner, this court finds that the witness has already been subjected to thorough and searching cross examination on the point which finds mention in the application U/s 311 Cr.P.C. No ground is made out for further cross examination of the complainant. Learned Trial Magistrate has rightly dismissed the application.
In view of the above discussion, this revision petition is hereby dismissed. Trial Court Record be returned and file of revision petition be consigned to Record Room.
Parties to appear before learned Trial Court on 02.04.2013.
Announced in Open Court
on 22.03.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Rev. No.25/13 5