Delhi District Court
Cr No. 43/18 Akhilesh Singh vs . Suresh Kumar on 20 February, 2018
CR No. 43/18 Akhilesh Singh Vs. Suresh Kumar
IN THE COURT OF SH. GAUTAM MANAN, ASJ(SFTC)
SOUTH WEST, DWARKA ,NEW DELHI
Criminal Appeal No. 43/18
In the matter of:
Akhilesh Singh
W/o Shri Hari Singh
Sister In-Charge, Main X-Ray Department
LNJP Hospital
2, Jawahar Lal Nehru Marg
New Delhi .... Revisionist
Versus
Suresh Kumar
S/o Shri Shobha Ram
A-50, Kesho Ram Park
Uttam Nagar
New Delhi. .... Respondent
Date of institution of revision : 25.01.2018
Date on which judgment reserved : 20.02.2018
Date on which judgment pronounced : 20.02.2018
ORDER
1. Criminal Revision petition is directed under Section 397 Cr.P.C. seeking set aside orders dated 18.01.2018 passed by Ld. Trial Court in CC No. 4993783/16 in case titled as "Suresh Kumar Vs. Akhilesh Singh" filed under section 138 N.I. Act. Impugned order dated 18.01.2018 reads as under: Criminal Revision Page 1 of 9
CR No. 43/18 Akhilesh Singh Vs. Suresh Kumar At 11:30 AM Present: Counsel for the complainant Sh. Jai Prakash Proxy counsel for accused Ms. Laimor Romi Boro.
Proxy counsel for accused seeks passover for 10-15 minutes. At request, put up at 11:45 AM.
At 11:45 AM Present: As above.
Counsel for accused seeks passover.
At request, put up at 12:00 PM.
At 12 Noon Present: As above.
Counsel for accused again seeks passover.
At 12:10 PM Present: Counsel for the complainant Sh. Jai Prakash along with complainant Proxy counsel for accused Ms. Laimor Romi Boro. Counsel for accused seeks again passover. No ground is made out. The matter at 11:30 AM at specific request of parties and their counsels. Accused remains absent despite repeated calls. Issue NBWs against the accused on filing of PF to be executed through SHO PS concerned, returnable for 01.03.2018.
Since the accused has failed to comply with the order dated 23.10.2017 of the Ld. Sessions Court, her right to cross examine the complaint stands closed.
Put up for appearance of the accused/further proceedings on date fixed.
Sd/18.01.2018
2. It is contended on behalf of revisionist that on 18.01.2018, counsel for revisionist was occupied in Karkardooma Court and after hearing of the case, he immediately left for Dwarka Courts but by that time matter was adjourned to 12 noon. It is submitted that at 12:10 PM, Ld. Trial Court closed Criminal Revision Page 2 of 9 CR No. 43/18 Akhilesh Singh Vs. Suresh Kumar right of revisionist to cross-examine complainant/respondent and issued NBWs of revisionist. It is submitted that as per the law laid down by various judgments no adverse orders could be passed against the revisionist before 4 pm and it is evident that Ld. Trial Court passed the order in haste which has caused injustice to the cause of revisionist.
3. It is further submitted that earlier also Ld. Trial Court closed the right of the revisionist to cross-examination the complainant vide orders dated 26.07.2017 which was set aside by Ld. Sessions Court vide orders dated 23.10.2017 subject to cost of Rs. 10,000/-. Aggrieved by imposition of cost, revisionist approached Hon'ble High Court by filing writ petition which is now listed for 06.03.2018. It is stated that the fact of filing of writ petition against the Sessions Court order was brought before Ld. Trial Court but Ld. Trial Court did not wait for revisionist and told to deposit Rs. 10,000/- and straight away issued NBW of revisionist and also closed right of complainant/revisionist to cross-examination. Hence, it is prayed that the orders passed by Ld. Trial Court on 18.01.2018 be set aside.
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4. It is submitted on behalf of the respondent/ complainant that complaint case instituted by him is pending before Trial Court since 12.09.2014. Earlier also, vide orders date 11.02.2015, 17.04.2015, 26.07.2017 NBWs of the accused/ revisionist were issued. It is stated that conduct of the revisionist is evident from record as on one pretext or the other revisionist is only interested in delaying proceedings of the case. It is further submitted that the revisionist has intentionally not abide by the orders passed by Ld. Sessions Court and despite opportunity given to revisionist, revisionist did not appear before Ld. Trial Court nor has paid the cost imposed on him. It is argued that there is no ground to entertain the present revision petition.
5. I have heard rival contentions and have gone through Trial Court Record.
6. Relevant proceedings to decide present petition of the Trial Court reads as under :
Criminal Revision Page 4 of 9
CR No. 43/18 Akhilesh Singh Vs. Suresh Kumar 11.11.2016 Counsel for accused not available. In interest of justice final opportunity granted to accused subject to cost of Rs. 1,000/-.
09.12.2016 Accused in person. Adjournment is sought on behalf of the accused. An adjournment granted subject to further cost of Rs. 2000/-. Previous cost unpaid. 13.02.2017 Counsel for accused appeared at 4 pm. Previous cost un- paid. Matter is adjourned for 21.03.2017 for CE. 21.03.2017 At joint request, adjourned for 21.04.2017. 21.04.2017 Lawyers on strike. Adjourned for 28.04.2017. 28.04.2017 Exemption is sought on behalf of accused. Matter adjourned for CE, final opportunity to accused to cross- examine the complainant for 06.06.2017 06.06.2017 Adjournment sought on behalf of accused. Accused not furnished bail bond till this date. Matter stands adjourned for 26.07.2017 at 11 am subject to cost of Rs. 500/-. 26.07.2017 Counsel for accused did not appear till 12:20 pm. Right to cross examination of complainant closed. Matter adjourned for 29.07.2017 for recording of SA. 29.07.2017 Revisionist not appeared before Trial Court. NBW issued against her for 17.08.2017.
17.08.2017 NBW not executed. Issue NBW for 11.09.2017. 01.09.2017 Proceedings of Trial Court stayed by ASJ till 15.09.2017. 11.09.2017 Proceedings stayed.
23.10.2017 Matter is posted for 31.10.2017 as per directions Ld. ASJ granting one opportunity to accused to cross-examine complainant subject to cost of Rs. 10,000/- 31.10.2017 Cost not paid. Listed for appearance on 10.11.2017. 10.11.2017 Accused not present. Counsel for accused not present.
Further cost of Rs. 2000/- imposed on accused. Adjourned for 17.11.2017 at 12 noon.
17.11.2017 Another opportunity granted to accused to pay the cost and to cross examine the complainant in view of the submission of accused that she has preferred a petition before Hon'ble High Court of Delhi. Matter posted for 18.01.2018 at 11:30 am.
18.01.2018 Impugned order as noted above.
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7. From perusal of the aforesaid orders, it is evident that on one ground or the other revisionist kept on taking adjournments to cross-examine respondent/ complainant. Eventually, on 26.07.2017, Ld. Trial Court closed opportunity of revisionist to cross-examine the complainant vide its order dated 26.07.2017. As per record revisionist assailed the order of Ld. Trial Court in revision petition which was allowed by Ld. ASJ vide orders dated 23.10.2017 and granted one opportunity to revisionist to cross-examine complainant subject to cost of Rs. 10,000/-.
8. Relevant portion of order passed by Ld. ASJ reads as under :
"Accordingly, revision petition stands allowed subject to cost of Rs. 10,000/- payable to respondent. Only one opportunity is granted to accused/ petitioner herein to cross-examine the complainant before Ld. Trial Court. Parties are directed to appear before Ld. Trial Court on 31.10.2017. On this day, the cross-examination of complainant will be conducted after payment of cost but if this date does not suit to Ld. Trial Court, somehow, then one date will be fixed by Ld. Trial Court for cross-examination. However, it is made clear that if petitioner does not avail the same, the right of cross-examination will be deemed to be closed and cost still will be payable to respondent."Criminal Revision Page 6 of 9
CR No. 43/18 Akhilesh Singh Vs. Suresh Kumar
9. On 31.10.2017, matter was posted for payment of cost on 10.11.2017 and on 10.11.2017, revisionist did not appear before Ld. Trial Court and again sought adjournment which was allowed subject to cost of Rs. 2000/-. On next date i.e. 17.11.2017 Ld. Trial Court considered the submissions made by revisionist that she has challenged the orders passed by Ld. Sessions Court. However, revisionist did not produce any order to the effect that the order passed by the Ld. ASJ was stayed by Hon'ble High Court of Delhi and adjourned the matter for 18.01.2018.
10. On 18.01.2018 also, revisionist did not place any order to effect that the order passed by Ld. ASJ thereby imposing cost on revisionist stands stayed. Keeping in view of non- payment of previous cost and the fact that the revisionist did not comply with directions of Ld. ASJ to pay a cost of Rs. 10,000/- to respondent even after taking adjournment on this ground Ld. Trial Court closed the opportunity of revisionist and issued NBW against her as she did not appear before Ld. Trial Court. Criminal Revision Page 7 of 9 CR No. 43/18 Akhilesh Singh Vs. Suresh Kumar
11. Once, revisionist did not comply with the directions passed by Court of Ld. ASJ vide its order dated 23.10.2017 nor produced any order staying the orders passed by Ld. ASJ, Ld. Trial Court rightly closed the opportunity of revisionist to cross-examine complainant and the order passed by Ld. Trial Court does not suffer from any infirmity or material irregularity.
12. As far as the issuance of NBWs against the revisionist is concerned, impugned order shows that revisionist did not appear before Ld. Trial Court on 18.01.2018 nor any application was filed on behalf of revisionist for her exemption. As such, in view of the absence of revisionist and her previous conduct Ld. Trial Court had no option but to issue her Non- bailable warrants. However, it is submitted on behalf of revisionist that revisionist did appear before Ld. Trial Court after passing of impugned order. Without entering into any controversy in this regard, it is ordered that NBWs issued against revisionist sands canceled and revisionist shall appear before Ld. Trial Court on the next date of hearing.
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13. In view of the aforesaid discussions, it is held that impugned order dated 18.01.2018 does not suffer from any material irregularity or infirmity and hence revision petition qua closing the opportunity of revisionist to cross-examine complainant/ respondent stands dismissed. NBWs issued against revisionist by Ld. Trial Court are recalled and revisionist is directed to appear before Ld. Trial Court on the next date of hearing.
Trial Court Record be sent back along with copy of this order. File be consigned to record room.
Announced in the open court on 20th day of February, 2018.
Digitally signed by GAUTAM (GAUTAM MANAN) GAUTAM MANAN ASJ (SFTC) /SOUTH WEST MANAN Date: 2018.02.22 DWARKA COURTS:DELHI 15:24:01 +0530 Criminal Revision Page 9 of 9