Delhi District Court
B4 Integrated Facility vs J.I.T.F. Urban Waste Management on 28 November, 2022
IN THE COURT OF SH. YASHWANT KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-
WEST DISTRICT, ROHINI COURTS, DELHI
Crl. Revision No. 234/2022
CNR No. DLNW01-008706-2022
Crl. Revision No. 235/2022
CNR No. DLNW01-008707-2022
&
Crl. Revision No. 236/2022
CNR No. DLNW01-008710-2022
1. B4 Integrated Facility
Management (P) Ltd. and Ors.
B4 House, M64, 2nd Floor
Lado Sarai, near Jhankhar
Banquet Hall, New Delhi
Also at :
F-334A, Basement Old
M.B. Road, Lado Sarai
New Delhi
2. Sh. Vinod Kumar Tyagi
(Director)
B4 House, M64, 2nd Floor
Lado Sarai, near Jhankhar
Banquet Hall, New Delhi
3. Sh. Manoj Kumar
(Director)
B4 House, M64, 2nd Floor
Lado Sarai, near Jhankhar
Banquet Hall, New Delhi
....... Revisionists
Versus
J.I.T.F. Urban Waste Management
(Jalandhar) Ltd.
(Through its authorized representative
Sh. Vivek Sharma)
JITF Centre, 28, Shivaji Marg
New Delhi-110015
...... Respondent
B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd.
Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 1 of 8
Date of filing : 29.08.2022
Date of arguments : 21.11.2022
Date of order : 28.11.2022
ORDER
1. Vide this common order, I shall dispose off the aforesaid three criminal revision petitions. The revisionists have filed criminal revision petitions bearing CR No. 234/2022, 235/2022 and 236/2022 under Section 397 Cr.P.C. against the identical orders dated 17.09.2021 & 24.05.2022 (hereinafter referred to the impugned order dt. 17.09.2021 and impugned order dt. 24.05.2022) passed by Ld. MM (NI Act), N/W, Rohini, Delhi in a cases bearing Ct. Case No. 19238/2016, Ct. Case No. 19327/2016 & Ct. Case No.19326/2016, all titled as 'JITF Urban Waste Management Ltd. Vs. B4 Integrated Facility Management Pvt. Ltd. & Ors.'. Vide the impugned order dt. 17.09.2021, the Ld. MM closed the opportunity of the revisionist-herein/accused-therein for cross-examination. Vide the impugned order dt.24.05.2022, the application u/s 311 CrPC of the accused/revisionists was dismissed.
2. The brief facts, as set out in the present revision petitions, are that the revisionists-herein had been arrayed as accused persons in the aforesaid cases, filed by the respondent-herein u/s 138 read with Section 141 and 142 of The Negotiable Instruments Act, 1881. In the said complaint cases, the Ld. MM passed the above impugned orders dt.17.09.2021 and 24.05.2022. Aggrieved by the said impugned orders, the revisionists have preferred the present revision petition on the grounds among others that on B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd. Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 2 of 8 17.09.2021 counsel for the revisionists came in the morning in the court and checked the cause list and as the matter was listed at the end of the list, he went to another court for evidence. After some time, proxy counsel for the revisionists reached before the court to see the status of case and on her enquiry, reader of the court informed about the next date of hearing i.e. 29.01.2022. Lateron counsel for the revisionists checked the order dt.17.09.2021 and it was found that the opportunity to cross-examine the complainant was closed. The complainant was not even present on the said date before the Ld. MM for his cross-examination as it is clear from the order dt. 17.09.2021 and even then also the opportunity to cross- examine the complainant was closed by the Ld. MM. The application u/s 311 CrPC moved by the counsel for the revisionists for recalling of witness was dismissed vide impugned order dt. 24.05.2022. The revisionists shall suffer irreparable loss, which cannot be compensated in terms of money if the present revision are not allowed. The revisionists have prayed to set aside the impugned order dt.17.09.2021 and impugned order dt.24.05.2022 passed in the above complaint cases.
3. The respondent has filed reply to the revision petitions and raised the preliminary objections that the revisionists/accused were granted several opportunities to cross-examine the respondent-herein vide order dt. 21.02.2018, 30.06.2018, 06.10.2018, 23.02.2019, 21.09.2019, 31.01.2020, 03.03.2021, 30.07.2021 and 17.09.2021. However, on one pretext or the other adjournments were sought as a dilatory tactics to delay the present proceedings B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd. Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 3 of 8 and failed to cross-examine the respondent for a period of more than three years. The matter is pending at the stage of complainant's evidence since 21.02.2018. The Ld. MM has no power to review or recall its own order u/s 311 CrPC as held by the Hon'ble Supreme Court in the case of Sunita Jain V. Pawan Kumar Jain [2008 2 SCC 705]. As per the judgment in the case of Hari Singh Vs. State of Haryana [2002 SCC OnLine P&H 177] of Hon'ble High Court of Punjab and Haryana, permission by the Magistrate, to examine a witness u/s 311 CrPC was in a way to review his own earlier order of closing of prosecution evidence and permission to examine the prosecution witness afresh would by itself be against his earlier order. In terms of Section 397(2) of CrPC, powers of revision cannot be exercised in relation to an interlocutory order passed in any appeal, inquiry, trial or other proceedings. In the present revision petitions, the revisionists have challenged the impugned orders dt.17.09.2021 and 24.05.2022, which do not in any manner terminate the main proceedings but are orders of purely interim or temporary nature and hence, fall within the ambit of Interlocutory orders. Thus, the present criminal revisions are not maintainable in view of the bar provided under Section 397(2) of CrPC. In this regard the respondent also referred the judgments in the cases of Amar Nath V. State of Maharashtra, AIR 1977 SC 2187 and Sethuraman V. Rajamanickam (2009) 5 SCC 153. The revision petitions have also been filed beyond the statutory period of 90 days and the same are liable to be dismissed in limine. On 17.09.2021 Mr. Ajay Sharma, counsel for the complainant was duly present and his appearance is also marked in the said order. The matter B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd. Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 4 of 8 was pending at the stage of complainant evidence since 25.05.2019 due to the delay caused by the revisionists/accused. The respondent has prayed to dismiss the revision petitions with costs in favour of the respondent.
4. I have heard the Ld. Counsel for the parties and I have gone through the impugned orders dt.17.09.2021 & 24.05.2022 and also judgments relied upon by the Ld. Counsel for the parties as well as materials available on record.
5. The Ld. counsel for the revisionists argued that cross-examination of complainant-therein was to be conducted but opportunity of the accused/revisionists to cross-examine the complainant was closed when the complainant was himself not present before the Ld. MM. The bar with regard to Section 397(2) of CrPC should not be applied in this case as the impugned orders were not interlocutory orders. Orders which affect the right of the parties may not be considered interlocutory order. The entire right of revisionist/accused for cross-examination was closed. It is not a simple order but it would adversely affect the right of the revisionists. In support of his arguments, Ld. counsel for the revisionists has relied upon the judgments in the cases of Deborah Mary Crasto Leclerc, GoaV. Patrick Oliver Leclerc 2015 (2) ABR (Cri) 657 and Murlidhar Vs. State of U.P. & Anr. 1992 Cri.LJ 2032 and Gulabchand Vs. State of U.P. & Anr. 2004 Cri.L.J. 2672.
6. The Ld. Counsel for the respondent argued that order permitting the re-examination of the party is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. The matter is pending at the stage of complainant's evidence B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd. Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 5 of 8 since 21.02.2018 but the revisionists/accused failed to cross- examine the complainant despite the opportunities given to them for more than three years. The impugned order dt.24.05.2022 was rightly passed by the Ld. MM as the Ld. MM has no power to review or recall its own order u/s 311 CrPC. The present criminal revision is not maintainable in view of the bar provided under Section 397(2) of CrPC. On 17.09.2021, Mr. Ajay Sharma, counsel for the complainant was very much present. In support of her arguments, Ld. Counsel for the respondent has relied upon the judgments in the cases of Neelam Mahajan & Anr. V. The State & Ors; Sethuraman V. Rajamanickam (2009) 5 Supreme Court Cases 153; Neelam Mahajan & Anr. V. The State & Ors. (2016) 229 DLT (CN) 29 and Varun Aggarwal V. State of NCT of Delhi & Anr. 2017 SCC OnLine Del 12364.
7. Perusal of record reveals that the respondent-
herein raised the objection that re-examination of a party is purely an interlocutory order as it does not terminate the proceedings and does not affect the final decision of the case and the present criminal revision is not maintainable in view of the bar provided under Section 397(2) of CrPC. The Ld. Counsel for the revisionists stated that bar with regard to Section 397(2) of CrPC is not applicable in this case as the impugned orders were not interlocutory orders. As per the above judgments cited by the Ld. Counsel for the parties, orders which substantially or materially, affects rights of the parties, in relation to material controversy in question, cannot be said to be interlocutory order. Interlocutory order merely denotes order of a purely interim or temporary nature, which B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd. Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 6 of 8 do not decide or touch the important rights or liabilities of the parties. Principle of natural justice should not be violated and fair and reasonable opportunity to represent his case should be given to the accused-therein. The complainant is the material witness in this case and his crossÂexamination is essential for just and proper adjudication of the case. Vide the impugned orders, the entire right of revisionist/accused for cross- examination was closed and it would adversely affect the right and defence of the revisionists-herein. As such, the impugned orders are not interlocutory orders.
8. It is further revealed from the record that after the suspension of the work in Delhi District Courts, both the counsel and parties joined the proceedings through VC on 03.03.2021 in Ct. Case No. 19236-2016. Ordersheets in remaining two complaint cases i.e. Ct. case No. 19237-2016 & 19238/2016 show that no one appeared on 03.03.2021 before the Ld. MM. On 30.07.2021, both the counsel for the parties were present but parties were not present before the Ld. MM. On 17.09.2021 only counsel for the complainant was present when the opportunity of the accused for cross-examination was closed. The revisionists should not be deprived of their right to defend their case. The spirit of Section 311 CrPC is to do justice and to prevent failure of justice. Therefore, considering the above discussion, for the just and proper adjudication of the case and in the interest of justice, one last opportunity be given to the revisionists-herein to cross-examine the complainant-therein before the Ld. MM. The judgments relied upon by the Ld. Counsel for the respondent are distinguishable from the facts and circumstances of the present case.
B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd. Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 7 of 8 Accordingly, the impugned order dt. 17.09.2021 closing the right of the accused to cross-examine the complainant and impugned order dt. 24.05.2022 dismissing the application u/s 311 CrPC of the revisionists/accused are set aside and the aforesaid revision petitions are allowed subject to cost of Rs.6,000/- each, which shall be paid by the revisionists to the complainant-therein/respondent-herein on the next date of hearing before the Ld. MM. The parties as well as counsel are directed to appear before the Ld. MM for on 14.12.2022. Trial Court Record be sent back along with copy of this order to Ld. Trial Court. Revision petition file be consigned to Record Room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2022.11.28
18:25:40 +0530
Announced in the open court (YASHWANT KUMAR)
today on 28 November 2022 Principal District & Sessions Judge th North-West District, Rohini, Delhi B4 Integrated Facility Management (P) Ltd. & Ors. V. J.I.T.F. Urban Waste Management (Jalandhar) Ltd. Cr. Rev. Nos.234/2022, 235/2022 & 236/2022 Page No. 8 of 8