Madhya Pradesh High Court
Priyanka Agrawal vs Gaurav Bansal on 21 July, 2017
1
MCRC.7996/2017
Priyanka Agrawal
v.
Gaurav Bansal
21/07/2017
Shri D.D.Bansal, counsel for the applicant.
This application under Section 482 of CrPC has been
filed against the order dated 21/06/2017 passed by
Sessions Judge, Gwalior in Criminal Revision No.282/2017
affirming the order dated 30/05/2017 passed by JMFC,
Gwalior in Criminal Case No.5337/2013.
The necessary facts for the disposal of the present
application in short are that the respondent has filed a
criminal complaint under Section 138 of Negotiable Instruments Act. After the evidence of the complainant was over, the applicant was examined under Section 313 of CrPC on 12/08/2016. On the next date of hearing, the applicant filed applications under Sections 311, 315 of CrPC and under Section 45 of Evidence Act. The complainant filed his reply and the case was fixed for arguments on 27/09/2016. The case was adjourned for arguments on the abovementioned applications on 27/09/2016, 20/10/2016, 04/11/2016, 06/12/2016, 23/12/2016, 23/01/2017 and 23/02/2017. The application filed under Section 315 of CrPC was allowed by order dated 16/03/2017 and the applicant/accused was permitted to get herself examined as a witness. By the same order, the application filed by the respondent under Section 45 of Evidence Act was rejected. Thereafter, the case was adjourned for arguments on the application filed under Section 311 of CrPC and by order dated 07/04/2017, the application filed under Section 311 of CrPC was rejected and the case was fixed for recording of defence evidence and the defence was directed to keep 2 MCRC.7996/2017 all the defence witnesses present positively and it was also mentioned that in case if the applicant/accused wants to summon any witness or document through the Court, then she should also file an application and the case was fixed for 02/05/2017. on 02/05/2017, the case was adjourned to 18/05/2017 on the ground of ill health of the applicant/accused. On 18/05/2017, the case was called but in spite of repeated calls neither the applicant/accused appeared before the Trial Court nor her advocate was present, therefore, it was directed by the Trial Court to place the case once again at 1:00 PM. Again nobody appeared at 1:00 PM and the Trial Court directed to place the case at 1:30 PM. At 1:30 PM, the counsel for the applicant/accused appeared and filed an application under Section 91 of CrPC which was rejected and the applicant/accused was given last opportunity to produce the defence evidence. On 30/05/2017, the counsel for the applicant/accused filed an application for adjournment on the ground that the applicant has filed a criminal revision against the order dated 07/04/2017 by which the application filed under Section 311 of CrPC was rejected and since the said revision is pending, therefore, the matter may be adjourned because the revision is likely to be decided within 20 days. The application for adjournment was rejected on the ground that the Revisional Court has not granted any stay. It is also mentioned in the order that the application filed by the applicant/accused under Section 315 of CrPC was allowed by order dated 16/03/2017 but in spite of that, the applicant has not entered in the witness box. Although, the last opportunity was given but in spite 3 MCRC.7996/2017 of that the applicant has not disclosed any reason in not getting herself examined as a defence witness. Accordingly, it was held that further time cannot be granted and the right of the applicant/accused was closed and fixed the case for 22/06/2017 for final arguments.
Being aggrieved by the order dated 30/05/2017, the applicant filed a criminal revision before the Sessions Court which was registered as criminal revision No.282/2017 and it too stood dismissed by order dated 21/06/2017 passed by Sessions Judge, Gwalior.
It is submitted by the counsel for the applicant that on 30/05/2017, the applicant was present before the Court and, therefore, if the Court was of the view that adjournment cannot be granted, then it should have recorded the evidence of the applicant under Section 315 of CrPC and should not have closed the right of the applicant to lead defence evidence.
Heard the learned counsel for the applicant and perused the orders.
The contention of the applicant is that since on 30/05/2017, the applicant was present before the Trial Court and, therefore, instead of closing the right to lead defence evidence, the Trial Court should have examined her as a witness because the application filed by the applicant under Section 315 of CrPC was already allowed.
The submissions made by the applicant on its face value appeared to be very attractive but on deeper scrutiny, the same is found to be misconceived.
I have gone through the application filed under Section 482 of CrPC by the applicant before this Court. In 4 MCRC.7996/2017 the entire application, it is nowhere mentioned that the applicant was ready and willing to appear as a witness but in spite of her willingness, she was not allowed to appear as a witness by the Trial Court. On the contrary, the applicant has mentioned the following facts in paragraph 3,4 and 5 which are as under:-
"3. That, after completion of evidence of the complainant/respondent, case was fixed for defence evidence on 30.5.2017 and for that purpose the petitioner was present before the court but on that date due to change of counsel, new counsel moved an application contending therein that the petitioner/accused has already filed a criminal revision no.238/2017 against the order dtd. 7.4.2017 and next date 5.6.2017 is fixed for hearing, therefore, 20 days time deserve to be granted for seeking stay from revisional court.
4. That, after hearing request of the petitioner, the learned court assured her to adjourn the case on coming the opposite counsel but the learned court at about 5 p.m. Rejected that application and closed the right of defence evidence of the petitioner vide order dtd. 30.5.2017.
5. That, against the order dtd. 30.5.2017, the petitioner preferred criminal revision no.282/2017 under section 397(2) r/w 401 Cr.P.C. before learned District and Sessions Judge, Gwalior who after hearing and taking harsh view has dismissed the revision confirming the order of JMFC, vide its order dtd. 21/6.2017."
Thus, it is clear that the submission made by the counsel for the applicant is de horse the factual grounds raised by him in the application filed under Section 482 of 5 MCRC.7996/2017 CrPC.
From the order-sheets of the Trial Court, it is clear that the applicant was examined under Section 313 of CrPC on 12/08/2016 and, thereafter, almost one year has passed but no substantial progress has taken place in the trial. By order dated 18/05/2017, a last opportunity was given to the applicant to lead defence evidence which was not availed by the applicant and again an attempt was made to get the matter adjourned on the ground of pendency of the criminal revision. When there is no stay by the superior Court, then the Trial Court was not obliged to accept the prayer made by the applicant and rightly so declined to adjourn the matter. As the last opportunity was given to the applicant to lead defence evidence, therefore, the Trial Court was left with no other option but to refuse the adjournment. The Trial Court has also clearly mentioned that the applicant has not disclosed any reason for not getting herself examined as a witness therefore, it clearly shows that the applicant was not ready and willing to enter in the witness box. Under these circumstances, the Trial Court was left with no other option but to close the right of the applicant which has been rightly done.
At this stage, it is submitted by the counsel for the applicant that if one more opportunity on the payment of cost is granted, then it would protect the interest of the applicant as well as it would be in the interest of justice.
Considered the submission made by the counsel for the applicant. True it is that every person must get full opportunity to defend himself/herself but under the garb of "justice" no one can be allowed to delay the proceedings.
6 MCRC.7996/2017In this Case, the applicant was examined under Section 313 of CrPC on 12/08/2016. The application under Section 315 of CrPC was allowed on 16/03/2017 and in spite of that the applicant never entered in the witness box to depose as a witness and, on one pretext or the other, tried to get the proceedings delayed.
Under these circumstances, it can be safely said that the applicant herself is responsible for the situation which has arisen in this case and, therefore, if a person has not come to the Court with clean hands, then he/she is not entitled for equitable relief of one more opportunity of leading the evidence.
Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the Trial Court by order dated 30/05/2017 did not commit any mistake by closing the rights of the applicant for leading defence evidence and the Revisional Court also did not commit any mistake in dismissing the revision in limine.
Consequently, this application filed under Section 482 of CrPC fails and is hereby dismissed.
(G.S.Ahluwalia)
AKS Judge