Delhi District Court
Harish Kumar vs Manorama on 7 May, 2025
IN THE COURT OF SHRI PRANJAL ANEJA,
SPECIAL JUDGE NDPS-02, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
REVISION PETITION NO. 58/2024
CNR No. DLCT01-001623-2024
IN THE MATTER OF:
HARISH KUMAR
S/o Sh. Ram Prakash,
R/o H. No. 461/5-A,
Gali No. 5, Mohalla Dalai,
Shahdara, Delhi-110032.
.......Revisionist
Versus
MANORAMA
W/o Late Sh. Satish Kumar,
R/o H. No. 1206, Village Alipur,
North West District,
Delhi-110036.
........Respondent
Instituted on : 16.02.2024
Reserved on : 07.04.2025
Pronounced on : 07.05.2025
JUDGMENT
1. Vide instant revision petition, revisionist challenging the Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 1 of 10 impugned order dated 27.01.2024 passed by Ld. MM (NI Act), Digital Court-02, Central District, Tis Hazari Courts, Delhi in case CC No. 308/2020 titled as Harish Vs. Manorama, whereby application of the respondent/ accused U/s 311 Cr.P.C. for recalling of CW-1 Harish was allowed by the Ld. MM (NI Act) Digital Court-02, Central, Tis Hazari, Delhi.
Brief Facts :
2. A complaint under section 138 of The Negotiable Instruments Act, 1881 (hereinafter called as NI Act) was filed by complainant/ revisionist, alleging that the accused had approached the complainant in the month of January, 2020 with a request to advance her a friendly loan of Rs. 3,50,000/- for a period of five months. Upon this, complainant issued two cheques of Rs. 1,00,000/- and Rs. 30,000/-, both dated 18.01.2020 and 12.02.2020 respectively drawn on SBI Bank in favour of the accused. One of the cheques i.e. for Rs. 1,00,000/- dated 18.01.2020 had been given from the account of complainant's friend namely Himanshu. Both cheques were duly honoured in the account of the accused and a sum of Rs. 1,20,000/- had also been given to the accused by the complainant having been arranged funds from his accounts and from other source. After expiry of the aforesaid period of five months, the complainant approached to the accused in the month of June, 2020 and requested her to return the money. On 09.06.2020, accused and the complainant entered into an agreement and accused issued three cheques i.e. cheque bearing no.
Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 2 of 10 448028 dated 28.07.2020 for an amount of Rs. 1,50,000/-; cheque bearing no. 448029 dated 03.08.2020 for an amount of Rs. 1,20,000/- & cheque bearing no. 448030 dated 07.08.2020 for an amount of Rs. 1,05,000/-, all drawn on SBI, Pratap Nagar in discharge of the legal outstanding liability, assuring that the same will be encashed. Upon presentation, all three cheques got dishonoured and returned back with the remarks 'Funds Insufficient" vide cheque returning memos dated 07.09.2020, 07.09.2020 and 04.09.2020 respectively. Upon assurance of the accused, all three abovesaid cheques were again presented, however, they got dishonoured/ returned 'unpaid' vide returning memo dated 17.10.2020 with remarks 'Funds Insufficient'. A legal notice dated 23.10.2020 was issued to the accused, however, despite service of legal notice, accused failed to pay the cheques amount. The accused is facing trial for offence under section 138 NI Act before Ld. Trial Court.
Background :
3. During the trial, the complainant/ CW-1 was being examined on 21.07.2023 and was cross-examined on behalf of accused.
During such cross-examination, CW-1 was asked if he can produce document pertaining to the personal loan of Rs. 10 Lacs to which he replied in affirmative and the cross-examination was then deferred for want of said document. On 18.10.2023, the opportunity to cross- examine CW-1 was closed. Thereafter, an application dated 21.11.2023 U/s 311 Cr.PC seeking to recall CW-1 Harish filed by the accused/ respondent during the hearing of the complaint case alleging that on Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 3 of 10 18.10.2023, matter was fixed for cross-examination of CW1 Sh. Harish, however, inadvertently, the previous counsel representing the accused, did not further cross-examine CW-1 due to medical grounds and opportunity to cross-examine the said witness was closed. It was further alleged that on 20.11.2023, accused engaged a new counsel, who had moved the present application U/s 311 Cr.P.C seeking to recall CW-1 Sh. Harish.
4. Upon the aforesaid application, the Ld. MM after noting the aforesaid contentions and submissions of the accused / respondent, passed the impugned order dated 27.01.2024, which reads as follows:
"Arguments heard on the application u/s 311 Cr.P.C. on behalf of accused.
Ld. counsel for accused submitted that right to examination was closed vide order dated 18.10.2023 and requests for an opportunity to cross examine the complainant.
Same is strongly opposed by Ld. Counsel for complainant.
Considering the submissions and perusal of record, application u/s 311 Cr.P.C. stands allowed subject to
(a) a cost of Rs. 1,000/- imposed upon the accused payable to complainant on or before NDOH;
(b) One last and final opportunity to the accused to cross examine the complainant; and
(c) Accused shall remain present on each and every day."
Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 4 of 10 Grounds taken in the present Revision :
5. Revisionist is aggrieved with the said order dated 27.01.2024 and has assailed the same on various grounds which can be summarized as under:-
(i) That the Ld. Trial Court has failed to appreciate the fact that from the first day of the proceedings, the respondent/ accused had been deliberately avoiding the court proceedings.
(ii) That the Ld. Trial Court has failed to appreciate the fact that on various occasions i.e. on 05.10.2021, 18.04.2022, 10.05.2022 and 04.06.2022, NBW had been issued against the accused due to non-joing of the court proceedings.
(iii) That the Ld. Trial Court has failed to appreciate the fact that since 22.02.2023, matter was at the stage of complainant evidence and since then, accused has been deliberately avoiding and delaying the court proceedings by making false and frivolous excuses either by herself or through her counsel.
(iv) That the Ld. Trial Court has failed to appreciate the fact that on 18.03.2023, counsel for accused as well as accused did not appear before the Court and matter was adjourned for 31.03.2023. Further, on 31.03.2023, accused and her counsel did not appear before the Court and final opportunity was given to cross-examine subject to cost of Rs.
2,000/- and matter was adjourned for 10.04.2023.
(v) That the Ld. Trial Court has failed to appreciate the fact that by allowing the application U/s 311 CrPC, a great prejudice would be Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 5 of 10 caused to the complainant/ revisionist.
6. I have heard the arguments and perused the record.
7. Ld. counsel relied upon the rulings titled as Kanta Goel Vs. Atul Gupta, 2024 SCC OnLine Del 600; Rajesh Marwah Vs. State & Ors., 2023 SCC OnLine Del 7705 & Mohd. Hasan Vs. State, 2023 SCC OnLine Del 5469.
8. Ld. counsel for respondent/ accused relied upon rulings titled as Sethuraman Vs. Raja Manickam, (2009) 5 SCC 153, Mohd. Hasan @ Nanhe Vs. State, Crl. Rev. Petition No. 419/2023 decided on 04.09.2023 by Hon'ble High Court of Delhi & Mr. Situ Ramnath Shastri Vs. IFCI Factors Ltd., Crl. MC No. 586/2021 decided on 30.08.2022 by the Hon'ble High Court of Delhi.
9. The first question to be decided by this Court is whether the present revision petition is maintainable in view of the bar created by provisions of Section 397(2) CrPC. Here, it would be relevant to reproduce relevant portion of Section 397 CrPC which is as under:-
"Sec.397- Calling for records to exercise powers of revision.- (I) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 6 of 10 the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation ................
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) .............."
10. In Amar Nath & Ors. V. State of Haryana & Another, (1977) 4 Supreme Court Cases 137, the Hon'ble Supreme Court while interpreting "Interlocutory order" has observed:-
"It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decided certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code."
11. In Neelam Mahajan & another Vs. The State & Ors. dated 08.04.2016, Hon'ble Delhi High Court has observed as under:-
"Applying these tests to the impugned order, this Court finds that the order permitting the re-examination of the petitioners is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. Furthermore, it is impossible to spell out the concept of an interlocutory order unless it is understood in contradistinction to or in contrast with a final order."
Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 7 of 10
12. Further, in the judgment of Varun Aggarwal Vs. State of NCT of Delhi & Anr., Crl.M.C. No. 2424/2017, Hon'ble Delhi High Court after referring the judgment passed by Hon'ble Supreme Court in "Amar Nath & Ors. V. State of Haryana & Another" observed that the order passed by Ld. MM closing the right of complainant to examine Forensic Expert was held to be interlocutory order and consequently revision was held to be not maintainable.
13. Similarly, in the judgment of Sethuraman Vs. Raja Manickam, (2009) 5 SCC 153, the Hon'ble Supreme Court observed that the order refusing to call the documents and rejecting application U/S 311 CrPC are interlocutory orders and as such, revision against these orders are clearly barred U/s 397(2) CrPC.
14. Now turning to the facts of the present case: Ld. Trial Court vide impugned order, allowed the application U/s 311 Cr.PC moved on behalf of respondent/ accused thereby allowing to cross- examine complainant/ respondent. It is here noted that the impugned order does not terminate the proceedings. It is clear that impugned order is merely a procedural order and therefore falls within category of 'interlocutory order', hence the present revision petition is not maintainable and same is liable to be dismissed in view of bar created by Section 397 (2) CrPC in view of the law laid down in 'Sethuraman' (Supra).
15. The Ld. counsel relied upon the rulings titled as Kanta Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 8 of 10 Goel Vs. Atul Gupta, 2024 SCC OnLine Del 600; Rajesh Marwah Vs. State & Ors., 2023 SCC OnLine Del 7705 & Mohd. Hasan Vs. State, 2023 SCC OnLine Del 5469. In Kanta Goel (supra), the cross- examination was concluded and thereafter, application U/s 311 CrPC was moved by the accused after a delay of more than of two years and ten months of the cross-examination. However, in the case in hand, the complainant/ revisionist was cross-examined on 21.07.2023 and further, cross-examination was not closed but was deferred for want of documents asked to be produced from the complainant/ revisionist, and on 18.10.2023, the opportunity to cross-examine the complainant was closed by the Ld. Trial Court and the application U/s 311 Cr.PC was moved on 21.11.2023. Thus, the present case is differentiated from the precedent of Kanta Goel (supra) as relied upon by the revisionist. Similarly, in Rajesh Marwah (supra), the application U/s 311 Cr.PC was filed by the accused after a delay of more than 03 years and 05 months from the date of cross-examination of CW-1 and the said application was dismissed observing that the complainant had been extensively cross-examined on previous occasion, which is not so in the case in hand. Similarly, in Mohd. Hasan (supra), the application U/s 311 Cr.PC was moved after five years of the examination of the witness and it was observed that sufficient opportunities were granted to the accused, which is not so in the case in hand. Thus, these rulings are of no help to the revisionist as they are distinguished from the case in hand.
16. Accordingly, in view of above discussion, the present Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 9 of 10 revision petition stands dismissed being non-maintainable.
17. Copy of the judgment be sent to Ld. Trial court for information alongwith Trial Court Record.
18. Revision file be consigned to Record Room after due compliance.
(Announced in Open Court on 07th May, 2025) (PRANJAL ANEJA) Special Judge, NDPS-02, Central District,Tis Hazari Court, Delhi/07.05.2025(kk) Digitally signed PRANJAL by PRANJAL ANEJA ANEJA Date: 2025.05.07 15:50:26 +0530 Crl Rev. No. 58/2024 Harish Kumar Vs. Manoarma Page No. 10 of 10