Delhi High Court - Orders
Sh Nitin Jain & Anr vs State Of Nct Of Delhi & Ors on 11 October, 2023
Author: Jyoti Singh
Bench: Jyoti Singh
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3399/2022, CRL.M.A. 14258/2022
SH NITIN JAIN & ANR. ..... Petitioners
Through: Mr. A. Mishra, Mr. Sahil and Mr.
Nidish Gupta, Advocates.
versus
STATE OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. Richa Dhawan, APP for
R-1/State.
Mr. Himanshu, Advocate for R-2.
Ms. Mohini for Mr. Kunal Sharma, Official
Liquidator.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 11.10.2023
1. Present petition has been filed under Section 482 Cr.P.C. challenging an order dated 01.07.2022 passed by the learned Metropolitan Magistrate, Karkardooma, Delhi in Complaint Case No.181/2017 whereby right of the Petitioners to cross-examine Respondent No.2/Complainant has been closed.
2. Mr. Himanshu, Advocate enters appearance and accepts notice on behalf of Respondent No.2.
3. Facts necessary for adjudication of the present petition are that Petitioners are Ex-Directors of Lumax Automotive Systems Limited, which is currently under liquidation and represented through the Official Liquidators appointed by this Court. Complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 read with Section 142 against dishonouring of three cheques bearing Nos.154721, 154722 and CRL.M.C. 3399/2022 Page 1 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/10/2023 at 07:28:13 154723 each amounting to Rs.3,05,834/- dated 30.07.2016, 30.08.2016 and 30.09.2016 respectively.
4. It was the case of the Complainant that the cheques were issued by the Petitioners against payment of gratuity along with other pending dues when the Complainant was relieved from Respondent No.2 Company. The cheques on presentation were dishonoured with remarks 'Account Blocked' as per the return memo. A legal notice dated 17.10.2016 was issued by the Complainant against the Petitioners and the Company and finally the present complaint was filed.
5. It is further stated in the petition that Petitioners appeared on 19.11.2018 for the first time and on the next date i.e. 29.11.2018, the Official Liquidator represented the company and the matter was posted for 28.03.2019. On the said date, Petitioners were unrepresented as they were appearing in another matter in a Court in Himachal Pradesh and the matter was posted for 31.05.2019, on which date Petitioners appeared in the Court. The matter was listed before the Trial Court from time to time thereafter till the proceedings were put in abeyance on account of Pandemic COVID-19. After the proceedings resumed, the present counsel was engaged in January, 2022 but Petitioner No.1 could not appear on 04.03.2022 as he was infected with COVID-19 virus. When the matter was taken up on 06.05.2022 for cross-examination, final opportunity was granted to Petitioners to cross- examine the Complainant on the next date i.e. 01.07.2022, failing which their right was to be closed.
6. It is stated that counsel for the Petitioners appeared before the Court at 10.15 a.m. and sought a passover as the arguing counsel was held up in Tis Hazari Courts. The matter was passed over in the first call to be taken up at CRL.M.C. 3399/2022 Page 2 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/10/2023 at 07:28:13 11.00 a.m. by the Trial Court. Matter was called for the second time and the right to cross-examine the Complainant was closed at 11.05 a.m. despite requesting the Trial Court to passover for a few minutes as the arguing counsel was on his way and would reach by 11.15 a.m., as he was stuck in traffic jam due to water logging.
7. Learned counsel for the Petitioners contends that the counsel was prepared to cross-examine the Complainant and was on his way from the Tis Hazari Courts but was delayed due to traffic jam enroute to the Karkardooma Courts on account of water logging. Counsel appearing before the Court did not seek adjournment but had only requested for the matter to be taken up around 11.15 a.m., however, the Trial Court declined the prayer and closed the right to cross-examine at 11.05 a.m. This has caused prejudice to the Petitioners for no fault of theirs as cross-examination of a Complainant is a valuable right available to the accused. It is thus prayed that the impugned order be set aside granting liberty to the Petitioners to cross-examine the Complainant subject to whatever terms the Court may impose.
8. Learned counsel for the Respondent opposes the submission and submits that the non-appearance of the Petitioners and their counsels on 01.07.2022 was a delay tactic as even on the earlier date adjournment was sought for the said purpose and the learned Trial Court had made it clear that no further opportunity will be granted if the Petitioners failed to cross- examine the Complainant on 01.07.2022.
9. Having heard the learned counsels for the parties, this Court is of the opinion that there is merit in the contention of the Petitioners. The impugned order itself indicates that the learned counsel for the Petitioners was only CRL.M.C. 3399/2022 Page 3 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/10/2023 at 07:28:13 seeking a passover and requested the matter to be taken up a few minutes after 11.00 A.M. This request was made as the arguing counsel was enroute to the Court and was getting delayed due to traffic jam on account of water logging. While this Court cannot subscribe to parties taking unnecessary adjournments and delaying the litigation, however, it cannot be glossed over that the right of the accused to cross-examine a complainant is a valuable right and is embedded in Article 22(1) of the Constitution of India. This Court is unable to fathom the reason why the Trial Court did not passover the matter by few minutes after 11.00 A.M., upon a request being made by the counsel, when the Court was in session. It is not the case of the Complainant that repeated or consistent defaults were made by the Petitioners in conducting cross-examination prior to the date of passing of the impugned order.
10. For all the aforesaid reasons, the impugned order is set aside directing the Trial Court to permit the Petitioners to cross-examine the Complainant on the next date fixed before the learned Trial Court, subject to payment of cost of Rs.10,000/- to Respondent No.2, within two weeks from today. It is made clear that no adjournment shall be taken by the Petitioners on the next date and they shall proceed to cross-examine the Complainant, failing which it is open to the learned Trial Court to pass any order it deems appropriate in the facts and circumstances of the case.
11. Petition along with pending application stands disposed of in the aforesaid terms.
JYOTI SINGH, J OCTOBER 11, 2023/ck/KA CRL.M.C. 3399/2022 Page 4 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/10/2023 at 07:28:14