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Naveen Kumar Malhotra vs State (Govt. Of Nct Of Delhi) on 4 January, 2016

           IN THE COURT OF SHRI TALWANT SINGH
              DISTRICT& SESSIONS JUDGE (EAST) 
                KARKARDOOMA COURTS, DELHI

C.R.No.34/2015
Unique case ID No.02402R0244852015

Naveen Kumar Malhotra 
S/o Sh. R.L.Malhotra 
R/o 6,  Aspern Green, 
Nirwana City, Gurgaon.                     ....    Revisionist 

                  Versus 

1. State (Govt. of NCT of Delhi).

2. Smt. Anuradha Sethi 
W/o Sh. Gulshan Sethi 
R/o G­116, Preet Vihar, 
Delhi­110092.                                      ....      Respondents



Date of Institution             : 16.07.2015
Date of order reserved       : 07.12.2015
Date of order                : 04.01.2016

O R D E R

Present revision petition has been filed by the revisionist assailing impugned order dated 19.05.2015 passed by Ld. C.R.No.34/15 Naveen Malhotra vs. State & Ors. Page 1 of 6 Metropolitan Magistrate/East, whereby Ld. M.M. disallowed the certain questions to be put to the complainant during his cross examination by counsel of the revisionist. It is against this order, the present revision petition has been filed.

2 Now coming to facts of the present case. A criminal complaint under Section 138/142 of Negotiable Instruments Act was filed by respondent No.2 against the revisionist and in the said complaint case, matter was fixed for cross examination of CW­1 Ms. Anuradha Sethi (complainant) on 19.05.2015, when certain questions were put to the complainant by Ld. counsel for the accused/revisionist. Said questions were disallowed by Ld. Trial Judge. 3 Notice of revision petition was issued to the respondents. TCR was summoned. I have heard Ld. counsel for the revisionist, Ld. Chief PP for the State/ Respondent No.1 and Ld. counsel for respondent No.2 and perused the record. 4 Present revision has been filed on the grounds that questions, which were disallowed were part of defence of the revisionist; the revisionist has consistently taken the same defence right from replying the legal notice of the complainant; those questions have direct bearing on the case and are relevant and necessary for rebutting presumption under Section 139 of the N.I.Act; cross C.R.No.34/15 Naveen Malhotra vs. State & Ors. Page 2 of 6 examination of the complainant can not be limited to facts contained in affidavit and may extend to such facts which are relevant to the case. 5 Ld. counsel for the revisionist has relied upon following authorities:­ (1) Sukhdata Chits Pvt. Ltd. vs. Rajender Prasad Gupta 2012 (187) DLT 229;

(2) Bipin Shantilal Panchal vs. State of Gujarat & Anr. 2001 II AD (S.C.) 305;

(3) Irfan Badshah vs. State 2013 (4) AD (Delhi) 564; (4) Karuna Singh vs. State ( NCT of Delhi) and another (2012) 5 SCC 407;

(5) Birender Singh vs. State (NCT of Delhi) 2008 (1) JCC 15 (NI); (6) K.N.Beena vs. Muniyappan and another 2001 Cri.L.J. 4745 ; & (7) M/s Indseam Services Ltd. vs. Bimal Kumar Kejriwal (HUF) 2001 Cri.L.J. 4748.

There is no dispute regarding the ratios laid down in above judgments.

6 On the other hand, Ld. counsel for the respondent No. 2 has relied upon authorities reported as Sethuraman vs. Rajamanikam [Criminal appeal No. 486­487 of 2009 arising out of SLP (Crl.) No. 2688­89 of 2005) decided by Hon'ble Supreme Court of India on 18.03.2009] & Ravinder C.P.Navelkar vs. Aruna Infracon Pvt. Ltd. and Anr. [Crl. M.C. 4299/2014 & Crl. M.A. C.R.No.34/15 Naveen Malhotra vs. State & Ors. Page 3 of 6 14871/2014 dated 21.08.2015].

7 Whether the impugned order is interlocutory or not and revision against the same is not maintainable, Ld. Counsel for the respondent has placed reliance on a judgment in Sethuraman vs. Rajamanikam (supra), however, ratio of this judgment is not applicable to the facts and circumstances of the present case as Hon'ble High Court of Delhi in case titled "Ravinder C.P.Navelkar vs. Aruna Infracon Pvt. Ltd. & Anr" (supra), relied upon by the respondent, had entertained a criminal M.C. 4299/2014 decided on 21.08.2015 on the issue of cross examination, hence, maintainability of the present revision petition cannot be challenged. In this case, the accused was traveling beyond the defence taken by him in response to notice under Section 251 Cr.P.C. and subsequent developments after filing of the complaint. Hon'ble High Court had rightly curtailed the right of the accused to do so. The facts in the present case are different, hence, ratio of this judgment is not applicable.

8 However, in Sukhdata Chits Pvt. Ltd. vs. Rajender Prasad Gupta (supra), it has been held that accused would be entitled to cross­examination of the complainant as is done in the summary trial case, but at the same time, he could not be precluded from putting C.R.No.34/15 Naveen Malhotra vs. State & Ors. Page 4 of 6 certain question which would otherwise be relevant and essential for the just decision of the case.

9 Now coming to the case in hand, the petitioner/ accused has consistently taken the same defence in reply to the Legal Notice, in response to Notice under Section 251 Cr.P.C., in application under Section 145(2) of the Negotiable Instruments Act and had tried to put the same defence to the complainant in his cross­examination. 10 It is true that Court is within its right to disallow irrelevant questions in cross­examination. But at the same time, questions involving defence taken by the accused right from answering Legal Notice, should be allowed. Therefore, impugned order is set aside and the petitioner is allowed to cross­examine the complainant on the point of defence taken in reply to the Legal Notice, in response to Notice under Section 251 Cr.P.C., in application under Section 145(2) of the Negotiable Instruments Act. However, right of the accused to cross­examine the complainant shall be confined to the defence taken by the accused in the present case as referred to above. It is reiterated that if any question beyond the defence already taken by the accused is asked from witnesses of the complainant, then Ld. Metropolitan Magistrate has right to disallow the same. Otherwise, there will be no end to the cross­examination. The questions asked C.R.No.34/15 Naveen Malhotra vs. State & Ors. Page 5 of 6 and disallowed vide impugned order are within the defence already taken by accused, so the impugned order dated 19.05.2015 can not be sustained.

11 In view of above discussion, present revision petition stands allowed. Impugned order dated 19.05.2015 is hereby set aside. TCR be sent back along with copy of the order.

File be consigned to record room.

Announced in the open Court                ( TALWANT SINGH )
Dated: 04.01.2016                 District & Sessions Judge (East)
                                     Karkardooma Courts : Delhi




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