Delhi District Court
Cr. Rev. Petition No.398/2019 Satish ... vs State & Anr on 25 January, 2020
Cr. Rev. Petition No.398/2019 Satish Kumar Garg Vs State & Anr
IN THE COURT OF SAMAR VISHAL ADDITIONAL SESSIONS
JUDGE-08 WEST DISTRICT: TIS HAZARI COURTS: DELHI
Crl. Revision Petition No. 398/2019
In the matter of :
Satish Kumar Garg
S/o Late Sh. Om Prakash Garg
R/o 2094/163, Kanhaiya Nagar
Tri Nagar, Delhi ...................... Revisionist
Versus
1. The State (NCT of Delhi) ...............Respondent no.1
2. M/s Satyam Finlease Pvt. Ltd.
107-A, Shivlok House-I,
Karampura Commercial Complex,
New Delhi .................Respondent no.2
Date of Institution : 30.10.2019
Date of reserving Order : 25.01.2020
Date of pronouncement : 25.01.2020
ORDER
1. This revision petition is filed against order dated 15.10.2019 passed by the Ld. Metropolitan Magistrate-04 (NI Act), West by Page No.1 of 7 Cr. Rev. Petition No.398/2019 Satish Kumar Garg Vs State & Anr which the Ld.Court has dismissed the application filed by the revisionist u/s 311 Cr.P.C. The application u/s 311 Cr.P.C was dismissed on the ground that complainant/respondent herein, was cross-examined on 24.01.2019 and thereafter on 16.03.2019 and thereafter the matter was listed for statement of accused and statement of accused was recorded on 04.04.2019. Later on, DW-1 revisionist, who is accused in the case was cross-examined on 15.07.2019. After the cross-examination of the complainant, sufficient time has elapsed. The application u/s 311 Cr.P.C was moved at the belated stage i.e. at the stage of final arguments. The fact of Interest Certificate and self cheques was within the knowledge of accused. The matter pertained to 2014 and in the facts and circumstances of the case and particularly, on the ground of delay, that petition was dismissed. While deciding the application, the Ld. Trial Court relied on the judgment of Hon'ble Punjab & Haryana High Court titled as Harmaljit Kaur Vs Swaran Seth - 2003 JDC 1012 =1999(1) Crimes 265=1999 (4) RCR (Crl).
2. Aggrieved by this order, the revisionist, who is accused in this case has filed this revision petition.
3. Notice was issued to the respondent, who is complainant in this case.
4. Trial Court record was summoned and arguments heard.
5. The revision petition is filed on the ground that :-
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i) The complainant has filed five cases for the same transaction for separate respective cheques which were pending together in the court of Shri Mohit Sharma, Ld. MM, Tis Hazari Court. Thereafter, three cases out of those five cases, have been transferred to the court of Shri Ajay Singh Parihar, Ld. MM Tis Hazari Court. In two matters pertaining before Shri Mohit Sharma, Ld. MM, these documents i.e. Interest Certificate and self cheques have been exhibited during examination as Ex.CW-1/18 and Ex.CW-1/D-1 and Ex.CW-1/D2 respectively.
ii) At the time of preparing argument this error is realized, the revisionist immediately moved an application for recalling DW-1 to exhibit the said documents, which has been dismissed by the LD. MM on 15.10.2019 and fixed the case for final arguments on 02.11.2019.
Now, by virtue of application u/s 311 Cr.P.C, the revisionist wants to bring on record the Interest Certificate and photocopy of two self cheques, which were filed alongwith the application u/s 311 Cr.P.C.
6. The trial court record shows that this case u/s 138 N.I Act was filed on 21.10.2014. Thereafter, entire trial has been completed in the trial Court and the case was at the stage of final arguments when this application u/s 311 Cr.P.C was moved. It has been submitted by the Ld. Counsel for the revisionist (accused in the Page No.3 of 7 Cr. Rev. Petition No.398/2019 Satish Kumar Garg Vs State & Anr complaint case) that the revisionist wants to bring on record one Interest Certificate and two self cheques by recalling and examining the revisionist in the trial as DW1. It is further submitted that Interest Certificate and two self cheques have been admitted by the respondent (complainant in the case) in his cross- examination. Revisionist (accused in the complaint case) now wants to prove the certificate and self cheques by recalling him for the evidence.
7. After considering entire facts and circumstances, I am of the view that revision petition is liable to be dismissed on following grounds:-
a) It seems that application u/s 311 Cr.P.C has been moved just to fulfill the lacuna in the evidence by the revisionist (accused in the complaint case). It is settled law that section 311 Cr.P.C cannot be used for recalling the witness to fill up lacuna of the case. It cannot be presumed that revisionist (accused in the complaint case) was unable to place on record these documents due to oversight or for any other plausible reason. It is the case of revisionist himself that he has placed these documents in other cases.
b) It was submitted during arguments by Ld. Counsel for revisionist that during cross-examination of the respondent (complainant in the case), specific questions were being asked about these documents. But, despite that, these documents were not put to him during his cross examination Page No.4 of 7 Cr. Rev. Petition No.398/2019 Satish Kumar Garg Vs State & Anr when the revisionist/accused got examined himself as a witness. The revisionist had the opportunity to bring these documents on record, which he failed to avail. It was also argued by the learned counsel for revisionist that the respondent has already admitted these three documents during cross examination and only marking of exhibits is remaining. Exhibitions of documents is only for the purpose of their identification and if the revisionist believes that these documents have been admitted by the respondent, they can always be read into evidence. However, it does not mean that this Court is giving any finding on the fact that whether these documents sought to be introduced by the application of 311 Cr.P.C have been admitted by the respondent or not during his cross examination.
c) The application u/s 311 Cr.P.C was moved with a view to re-examine the revisionist/accused to bring these documents, however, revisionist/accused is not the author of the Interest Certificate and therefore, he could not have proved these documents even if the application u/s 311 Cr.P.C would have been allowed by the Ld. Trial Court.
d) The documents sought to be now brought on record have been filed for the first time in the court, at the stage of final arguments alongwith the application under section 311 Cr.P.C despite the revisionist being in possession of the same and conscious of their importance if any.
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e) Lastly, the dismissal of the application u/s 311 Cr.P.C is an interlocutory order in view of the judgments Sethuraman Vs Rajamanickam (2009) 5 SCC 153 of the Hon'ble Supreme Court of India, Kaushalya Rani Vs Municipal Corporation of Delhi, 79 (1999) DLT 709 and Anil Kumar Vs Sunita & Ors., Criminal Appeal No. 774/2011, decided on 19.02.2013 of Hon'ble Delhi High Court and therefore can not be challenged by filing a revision petition.
8. The Hon'ble Supreme Court of India in case of Sethuraman (supra) has inter alia held as follows:
"5. Secondly, what was not realised was that the orders passed by the trial court refusing to call the documents and rejecting the application under Section 311 CrPC, were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397 CrPC. Therefore, both the orders i.e. one on the application under Section 91 CrPC for production of documents and other on the application under Section 311 CrPC for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397 (2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction.Page No.6 of 7
Cr. Rev. Petition No.398/2019 Satish Kumar Garg Vs State & Anr The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed."
9. In view of the above said settled law, it is clear that dismissal of the application of the revisionist under section 311 Cr.PC is an interlocutory order , the revision petition against which is also not maintainable u/s 397 (2) CrPC.
10. In view of afore-discussed facts and circumstances of the case, present revision petition stands dismissed not only on merits but also on its maintainability.
11. Copy of order alongwith trial Court record be sent to the Ld. Trial Court.
12. This file be consigned to Record Room after necessary compliance.
Digitally signed by SAMAR SAMAR VISHAL
VISHAL Date:
2020.01.27
Pronounced in the open 11:26:54 +0530
Court on 25.01.2020 (Samar Vishal)
Additional Sessions Judge -08
(West) Tis Hazari Courts Delhi
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