Delhi District Court
Ganaya Commodities And Anr vs Avneet Goyal on 5 October, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR. DLCT01-006846-2023
CR No. 296/2023
Ganaya Commodities
Through IRP,
1. Devashish Nanda Dixit
2. Usha Sharma
W/o. Late Sh. Vinod Sharma,
G-249, Block G, Preet Vihar,
New Delhi-110092.
3. Neeraj Sharma
W/o. Late Sh. Vinod Sharma,
R/o. G-249, Block G, Preet Vihar,
New Delhi-110092.
..... Revisionists
Vs.
1. Avneet Goyal
S/o. Late. Sh. Brij Mohan Goyal
Proprietor of M/s. R.B. Enterprises,
R/o. 4064, Naya Bazar, New Delhi-92.
2. The State
(Govt. of NCT of Delhi)
..... Respondents
Date of institution of Revision : 19.05.2023
Date on which order reserved : 05.09.2024
Date on which order pronounced : 05.10.2024,
CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 1 of 13
CNR No. DLCT01-006845-2023
CR No. 297/2023
Ganaya Commodities
Through IRP,
1. Devashish Nanda Dixit
2. Usha Sharma
W/o. Late Sh. Vinod Sharma,
G-249, Block G, Preet Vihar,
New Delhi-110092.
3. Neeraj Sharma
W/o. Late Sh. Vinod Sharma,
R/o. G-249, Block G, Preet Vihar,
New Delhi-110092.
..... Revisionists
Vs.
1. Avneet Goyal
S/o. Late. Sh. Brij Mohan Goyal
Proprietor of M/s. R.B. Enterprises,
R/o. 4064, Naya Bazar, New Delhi-92.
2. The State
(Govt. of NCT of Delhi)
..... Respondents
Date of institution of Revision : 19.05.2023
Date on which order reserved : 05.09.2024
Date on which order pronounced : 05.10.2024
AND
CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 2 of 13
CNR No. DLCT01-006847-2023
CR No. 308/2023
Ganaya Commodities
Through IRP,
1. Devashish Nanda Dixit
2. Usha Sharma
W/o. Late Sh. Vinod Sharma,
G-249, Block G, Preet Vihar,
New Delhi-110092.
3. Neeraj Sharma
W/o. Late Sh. Vinod Sharma,
R/o. G-249, Block G, Preet Vihar,
New Delhi-110092.
..... Revisionists
Vs.
1. Avneet Goyal
S/o. Late. Sh. Brij Mohan Goyal
Proprietor of M/s. R.B. Enterprises,
R/o. 4064, Naya Bazar, New Delhi-92.
2. The State
(Govt. of NCT of Delhi)
..... Respondents
Date of institution of Revision : 19.05.2023
Date on which order reserved : 05.09.2024
Date on which order pronounced : 05.10.2024
CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 3 of 13
COMMON O R D E R
1. The present revision petitions u/s. 397 Cr. P.C. have been filed against the same impugned orders dated 15.03.2023 passed by the Ld. Trial Court of Sh. Chander Bose, Ld. Special Metropolitan Magistrate, Central, Tis Hazari Courts, Delhi in CC Nos. 540840/2016, 540841/2016 and 540858/2016, all titled as 'Avneet Goyal Vs. Ganaya Commodities Pvt. Ltd.', vide which the ld. Trial Court had closed the right of the revisionists to cross-examine the complainant/CW-1 as well as disallowed the question by imposing cost upon the revisionist no.3 Neeraj Sharma.
2. The brief facts of the case necessary to decide the present revision petitions are that the respondent no. 1 has filed complaints u/s. 138 NI Act against the revisionists and during the trial, the ld. Trial Court framed notice u/s. 251 Cr. P.C. against the revisionists and the matter was listed for CE. On 15.03.2023, vide the impugned orders, the ld. Trial Court holding that the revisionists deliberately do not want to cross-examine CW-1, closed the right of the revisionists to cross-examine the respondent.
3. Aggrieved by the said orders, the revisionists have approached this Court on several grounds. It is contended by the ld. Counsel for revisionists that the Counsel for revisionists posed questions concerning the business of CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 4 of 13 CW-1, delivery of goods and other circumstances connected with the transaction but the ld. Trial Court disallowed the questions and had also imposed cost of Rs. 5,000/- upon the revisionists thereby causing prejudice to the revisionists by precluding them to effectively exercise their right to cross-examine CW-1. It is further contended that the impugned order passed by the ld. Trial Court is mistaken and erroneous and further imposition of cost upon the revisionist no.3 is incorrect and illegal. It is further contended that the impugned order passed by the ld. Trial Court is unsustainable as the cheque dishonour case initiated by the complainant is based upon frivolous story and forged invoices in conspiracy with Sh. Nitin Gupta to take wrongful gain by using the stolen cheques of the revisionists. It is further contended that the cheques upon which the cases have been initiated are based upon few of the several cheques which were stolen by Sh. Nitin Gupta from the possession of late Sh. Vinod Sharma and that Sh. Nitin Gupta had also initiated false complaint u/s. 138 NI Act in Gurgaon Court which have already been dismissed. It is further contended that the complainant has claimed existence of transaction between the revisionists for 'Rajma Chitra' on the basis of forged invoices and the debt incurred by the revisionists and therefore, the questions posed to CW-1 in cross-examination were highly relevant and necessary to evince the frivolity of the story concocted by the complainant in conspiracy with Sh. Nitin CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 5 of 13 Gupta. It is further contended that disallowing the questions by the ld. Trial Court on the ground of relevancy and admissibility is mistaken and utterly erroneous. It is further contended that revisionists have statutory right to cross-examine a witness which may not necessarily be confined to the facts testified by the witness in examination in chief. It is further contended that the revisionists have statutory right to cross-examine a witness as to questions which tend to test his veracity, to shake his credit and by injuring his character etc. It is further contended that there were reasonable grounds to ask questions to the witness which the ld. Trial Court disallowed. It is therefore, prayed that impugned orders passed by the ld. Trial Court may kindly be set aside.
4. To the contrary, ld. Counsel for respondent no.1 argued that the present revision petitions are not maintainable as there are no glaring infirmity or fundamental illegality in the common impugned order dated 15.03.2023. It is further contended that the cross-examination of CW-1 commenced on 20.01.2020 and concluded on 15.03.2023 after repeated adjournments sought by the defence. It is further contended that the ample and just reasonable opportunities were given to the defence to cross-examine CW-1 which continued over three years. It is contended that the present revision petitions are nothing but an attempt on behalf of the accused persons to further delay CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 6 of 13 the trial of the cases. It is contended that the ld. Trial Court rightly rejected some of the questions put to CW-1 during cross-examination regarding delivery of goods, place of godown, number of godowns and mode of delivery etc. because the factum of delivery of goods was not specifically denied by the revisionists during their defence plea. It is contended that the case is pending trial over eight years and the questions were rightly denied by the ld. Trial Court. It is prayed that the present revision petitions may kindly be dismissed.
5. Ld. Addl. PP for respondent no.2/State contended that the orders passed by the ld. Trial Court are within the four corners of the law.
6. This Court has heard the rival contentions from both the sides and perused the judicial record.
7. In the present cases, the complaints have been filed by the respondent no.1 against the revisionists on the allegations that the respondent no.1 has supplied 'Rajma Chitra' worth Rs. 2,05,38,329/- vide two bills dated 02.07.2016 respectively to Ganaya Commodities Pvt. Ltd. through the broker Nitin and that towards part payment of the aforesaid dues, the impugned cheques were issued by the accused persons to the respondent no.1.
8. During trial, accused no.2 Vinod Kumar Sharma expired and accordingly, he was dropped from the array of parties CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 7 of 13 vide order dated 29.08.2017 of the ld. Trial Court.
9. The ld. Trial Court framed notice u/s. 251 Cr. P.C. against the accused no.1 company Ganaya Commodities Pvt. Ltd. through the director Usha Sharma, accused no.3 Usha Sharma and accused no.4 Neerja Sharma.
10. The plea of defence taken by the accused persons was that they do not know whether any transaction took place with the complainant and that they do not have any knowledge about the transaction.
11. The Trial Court record reflects that during cross-
examination of CW-1, ld. Counsel for revisionist no.3 asked questions regarding number of godowns, the process followed for dispatching the goods from godown but the same were disallowed by the ld. Trial Court on the ground that in the plea of defence, the accused has not specifically denied the delivery of goods. Ld. Counsel for revisionist no.3 further asked question regarding communication of acceptance of goods but the same was also disallowed with cost of Rs. 5,000/- by the ld. Trial Court.
12. Thereafter, it is recorded that ld. Counsel for revisionist no.
3 does not want to further cross-examine the witness and deliberately he does not want to complete the same and that he wants to go in appeal regarding the disallowance of the questions and imposition of cost. Thereafter, the ld. Trial Court closed the cross-examination of CW-1.
CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 8 of 13
13. 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.
14. 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."
15. 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 Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 9 of 13 "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."
16. The importance of cross-examination of witness, 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.
17. 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 Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 10 of 13 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.
18. 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.
19. 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.
20. In the present case, it is important to note that the complaints are based on the fact that huge quantity of CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 11 of 13 'Rajma Chitra' has been supplied by the complainant to the revisionists and for part payment, the impugned cheques were issued by the revisionists. It is also pertinent to note that in the plea of defence taken by the revisionists during the stage of Section 251 Cr. P.C., they have not admitted the factum of delivery and acceptance of goods. In the cases pertaining to Sec. 138 NI Act, the statutory presumptions stand in favour of the complainant and the burden lies upon the accused persons to rebut those presumptions either by cross-examination or leading the defence evidence. It is not necessary for the accused persons to lead defence evidence, they may show the preponderance of probabilities in their favour by pointing out the lapses or inconsistencies in the prosecution story by demolishing the prosecution case by using the tool of cross-examination. Thus, importance of cross-examination in cases u/s. 138 NI Act is much more higher as compared to other criminal cases.
21. In the present case, since the revisionists have not admitted the factum of delivery of goods to them by the complainant, they cannot be restrained from asking questions to the complainant regarding the delivery of goods. Therefore, the decision of the ld. Trial Court for disallowing the questions put by the ld. Counsel for revisionists does not seem to be correct and neither the imposition of cost deemed to be proper. The impugned CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 12 of 13 orders dated 15.03.2023 vide which the cross-examination of CW-1 was closed, is accordingly set aside.
22. This Court is of the view that for proper and effective adjudication of the present cases and in the interest of justice, opportunity may be afforded to the revisionists to further cross-examine the respondent. The Ld. Trial Court shall fix a date and afford opportunity to the revisionists 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. It is also needless to mention that ld. Trial Court shall decide the relevancy of the questions put by the ld. Counsel for the revisionists to the respondent.
23. The present revision petition is allowed on above terms.
The parties are directed to appear before the Ld. Trial Court on 07.10.2024 for further proceedings as per law.
24. The copy of this order be sent to the ld. Trial Court for information and necessary action.
25. Revision files be consigned to the Record Room.
SUSHIL Digitally signed
by SUSHIL ANUJ
Announced in the open ANUJ TYAGI
Date: 2024.10.05
Court on 05th October, 2024 TYAGI 12:43:36 +0530
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
05.10.2024(VR)
CR Nos. 296/2023, 297/2023 and 308/2023 Ganaya Commodities and Anr. Vs Avneet Goyal Page No. 13 of 13