Delhi District Court
M/S Saisons vs M/S Rainbow Enterprises on 3 February, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR. DLCT01-015818-2022
CR No. 630/2022
M/s. Saisons
Through its Proprietor
E-57, Sector-8, Noida,
Uttar Pradesh.
..... Revisionist
Vs.
M/s. Rainbow Enterprises
Through its Proprietor/Partner
413, Haider Kuli,
Chandni Chowk, New Delhi-06.
..... Respondent
Date of institution of Revision : 18.11.2022
Date on which order reserved : 27.01.2024
Date on which order pronounced : 03.02.2024
ORDER
1. The present revision petition u/s. 397 r/w Section 399 Cr.
P.C. has been filed against the impugned order dated CR No. 630/2022 M/s. Saisons Vs M/s. Rainbow Enterprises Page No. 1 Of 8 15.10.2022 passed by the Ld. Trial Court of Ms. Bhujali, Ld. MM, (NI Act), Tis Hazari Courts, Delhi in CC No. 1167/2018 titled as 'M/s. Rainbow Enterprises Vs. M/s. Saisons, vide which the Ld. Trial Court has closed the right of the revisionist to cross-examine the complainant/respondent.
2. It is contended by the ld. Counsel for revisionist that the ld.
Trial Court vide impugned order closed the right of the cross-examination due to non appearance of the revisionist but the previous Counsel for revisionist had informed wrong date of hearing to the revisionist because of which neither the revisionist nor his Counsel could appear on 15.10.2022. It is further contended that the impugned order caused great prejudice to the revisionist resulting in irreparable loss. It is further contended that the approach adopted by the ld. Trial Court is totally erroneous and illegal. It is further contended that cross-examination of the witness is very necessary for fair and just decision of the case. It is therefore, prayed that impugned order may kindly be set aside.
3. To the contrary, ld. Counsel for respondent argued that the revisionist is adopting delaying tactics and the ld. Trial Court has rightly closed the right of the revisionist to cross-examine the respondent. It is further contended that the present revision petition is not maintainable. Ld. Counsel relied upon the following judgments in support of CR No. 630/2022 M/s. Saisons Vs M/s. Rainbow Enterprises Page No. 2 Of 8 his arguments :-
(a) Amar Nath and Ors. Vs. State of Haryana and Anr., Crl. Appeal No. 124/1977.
(b) Amit Kapoor Vs. Ramesh Chander and Anr., Crl. Appeal No. 1407/2012.
(c) Pappu @ Ram Narayan Vs. State of Uttar Pradesh, Crl. Appeal No. 1965/2008.
4. This Court has heard the rival contentions from both the sides and perused the judicial record.
5. In the present case, vide impugned order dated 15.10.2022, the ld. Trial Court while observing that the revisionist is repeatedly not coming forward to cross-examine the respondent despite several opportunities and cost, which is causing unnecessary delay in the trial, closed the right of the revisionist to cross-examine the complainant. The stand taken by the revisionist is that he was misinformed by the previous Counsel about the date of hearing and therefore, he could not appear before the ld. Trial Court on the date fixed. Record reflects that the matter was listed on 05.02.2022 through V.C. and the complainant was directed to appear in person on 02.06.2022. On 02.06.2022, last opportunity was granted to the revisionist to cross- examine the complainant subject to cost of Rs. 3,000/-. Again on 17.09.2022, last and final opportunity was granted to the revisionist and the matter was posted for 15.10.2022 when the revisionist did not appear and the impugned order was passed.
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6. 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.
7. 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 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."
8. 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:
CR No. 630/2022 M/s. Saisons Vs M/s. Rainbow Enterprises Page No. 4 Of 8 "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."
9. The importance of cross-examination of witness is therefore cannot be undermined. The fate of the criminal trial 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.
10. 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 CR No. 630/2022 M/s. Saisons Vs M/s. Rainbow Enterprises Page No. 5 Of 8 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.
11. 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.
12. In Vimal Khanna Vs State, CRL. M.C. 4996/2018, decided on 01.10.2018, Hon'ble High Court of Delhi held that 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.
13. As far as the question of interlocutory order is concerned, this Court is of the view that the impugned order closing CR No. 630/2022 M/s. Saisons Vs M/s. Rainbow Enterprises Page No. 6 Of 8 the right to further cross-examine the complainant substantially affects the rights of the revisionist and therefore, it cannot be termed as an interlocutory order. The judgments relied upon by the ld. Counsel for respondent do not seem to be applicable to the facts and circumstances of the present case.
14. In the present case, the ld Trial Court had closed the right of the revisionist to further cross examine the complainant vide impugned order dt. 15.10.2022. Here, it is 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.
15. 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 revisionist to further cross-examine the respondent subject to the cost of Rs. 20,000/- 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 day to day basis till it is concluded.
16. The present revision petition is allowed on above terms.
CR No. 630/2022 M/s. Saisons Vs M/s. Rainbow Enterprises Page No. 7 Of 8 The parties are directed to appear before the Ld. Trial Court on the date already fixed by the ld. Trial Court.
17. The copy of this order be sent to the ld. Trial Court for information and necessary action.
18. Revision file be consigned to the Record Room.
Digitally signed
SUSHIL by SUSHIL ANUJ
ANUJ TYAGI
Announced in the open TYAGI
Date: 2024.02.03
14:47:28 +0530
Court on 03rd February, 2024
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
03.02.2024(VR)
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