Delhi District Court
B. K. Jha vs Brij Bhushan Attri on 4 January, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR. DLCT01-002742-2023
CR No. 106/2023
B.K. Jha (Binoy Kumar Jha)
S/o. Sh. Hari Kant Jha
R/o. Flat No. 56, Neel Giri Apartment,
Sector-9, Rohini, Delhi-85.
..... Revisionist
Vs.
Brij Bhushan Attri
S/o. Sh. Mahesh Bal Attri
R/o. 12/9G, Double Storey Quarter,
Amrit Kaur Puri, Karol Bagh,
Delhi-110005.
..... Respondent
Date of institution of Revision : 21.02.2023
Date on which order reserved : 01.12.2023
Date on which order pronounced : 04.01.2024
CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 1 Of 11
ORDER
1. The present revision petition u/s. 397 Cr. P.C. has been filed against the impugned order dated 20.12.2022 passed by the Ld. Trial Court of Sh. Chandra Bose, Ld. P.O., Spl. Court, (NI Act), Tis Hazari Courts, Delhi in CC No. 529059/2016 titled as 'Brij Bhushan Attri Vs. B.K. Jha, vide which the Ld. Trial Court has closed the right of the revisionist to further cross-examine the complainant/respondent.
2. It is contended by the ld. Counsel for revisionist that the the revisionist has been denied his valuable right to fair trial by not permitting him to cross-examine the complainant properly and further imposing cost of Rs. 2,000/- for asking irrelevant questions. It is further contended that the revisionist has a right to defend the case, which has been curtailed by the ld. Trial Court under the influence of intermittent unlawful obstructions raised by the Counsel for the respondent. It is further contended that the respondent is an illegal money lender and by using forged and fabricated documents obtained from various persons, he is engaged in extorting money from the persons like the revisionist, by filing false cases u/s. 138 NI Act. It is further contended that during cross- examination, the respondent was shown the list of 30-40 cases filed by him and pending in several Courts to which CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 2 Of 11 he denied to answer by saying that he does not remember. It is further contended that when the Counsel for revisionist asked questions with respect to the ITR of the respondent, the ld. Trial Court not only disallowed the questions but also imposed the cost of Rs. 2,000/- upon the revisionist. It is further contended that during cross- examination, Counsel for respondent in order to obstruct the cross-examination, unnecessarily raised objections on each and every question, but the ld. Trial Court did not restrain the Counsel for respondent and the Counsel for petitioner was compelled to explain the relevance of questions put to the respondent in his presence and when it was 5.00 p.m., the ld. Trial Court insisted to complete the cross-examination on that day itself and when the counsel for the revisionist asked for another date for further cross- examination, the same was refused and the right to further cross-examine was closed by the ld. Trial Court. It is further contended that the ld. Trial Court has erroneously come to the conclusion that the revisionist deliberately does not want to complete the cross-examination. It is further submitted that the the ld. Trial Court has failed to appreciate that the cross-examination is the only way through which the revisionist can legally rebut the statutory presumptions against him as provided under NI Act. It is further contended that the ld. Trial Court has failed to appreciate that the questions relating to the ITR of the respondent are relevant and erroneously imposed cost CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 3 Of 11 upon the revisionist. It is further contended that the ld. Trial Court has failed to appreciate that in order to adjudicate the case fairly and properly, the revisionist must be provided opportunity to freely cross-examine the respondent and therefore, the ld. Trial Court ought not have closed the valuable right of the revisionist to cross- examine the respondent for bringing forth the truth as well as his defence. It is therefore, prayed that the revision petition may kindly be allowed.
3. To the contrary, ld. Counsel for respondent argued that the impugned order is an interlocutory order and the present revision petition is not maintainable. To support such arguments, the ld. Counsel relied upon the judgments of the Hon'ble Apex Court titled as Sethuraman vs. Rajamanicham, Crl. Appeal No. 486-487/2009. It is further contended that the ld. Trial Court has given proper opportunity to the revisionist to cross-examine the witness but the ld. Counsel for revisionist put the irrelevant questions which were disallowed by the ld. Trial Court with cost and further opportunity was granted to cross- examine the witness but the ld. Counsel denied the same and gave his consent to close the cross-examination. It is further contended that the ld. Counsel for revisionist was unable to satisfy the ld. Trial Court qua the relevancy of questions and committed misconduct before the Court of law and threatened the ld. Trial Court to close the evidence CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 4 Of 11 by shouting thrice-dismissed, dismissed, dismissed. It is further contended that as per the rules of the Hon'ble High Court of Delhi, the ld. Trial Court may run and increase the working hours, hence, the ld. Trial Court did nothing wrong by working till 5.00 p.m. or after that. It is further contended that the ld. Trial Court correctly disallowed the irrelevant questions as there is no relevancy of ITR in cases u/s. 138 NI Act. It is further contended that the revisionist is adopting dilatory tactics to linger on the matter. It is prayed that the present revision petition may kindly be dismissed.
4. This Court has heard the rival contentions from both the sides and perused the judicial record.
5. The judicial record reveals that during further cross-
examination of the respondent on 20.12.2022, when the question was asked regarding the ITR, the Court observed that the question is irrelevant and the same was dismissed with a cost of Rs. 2,000/- upon the revisionist to be paid to the respondent. The record further reveals that when the question was asked to the respondent-whether he has filed any other case against the accused?, the ld. Trial Court asked the relevancy of the question to which the ld. Counsel replied as dismissed, dismissed, dismissed. Thereafter, the ld. Trial Court observed that the ld. Counsel for revisionist submits that he does not want to further cross-examine the witness as he is not being allowed to put CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 5 Of 11 the question. The ld. Trial Court also observed that the ld. Counsel for the revisionist does not want to complete the cross-examination. Thereafter, the ld. Trial Court went on to consider the relevancy of the question and allowed the same.
6. After observing that the ld. Counsel for revisionist does not want to cross-examine, the further examination on behalf of revisionist was closed. Even after closing the right, the ld. Trial Court again allowed the Counsel for revisionist to cross-examine but it is recorded that he did not want to cross-examine the witness on the ground that he is under fear of rejection of question and imposing of cost, hence, the further cross-examination was closed by the ld. Trial Court.
7. 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.
8. 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:
CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 6 Of 11 "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."
9. 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:
"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."
10. The importance of cross-examination of witness is CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 7 Of 11 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.
11. 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 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.
12. 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.
13. In Vimal Khanna Vs State, CRL. M.C. 4996/2018, CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 8 Of 11 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.
14. As far as the question of interlocutory order is concerned, this Court is of the view that the impugned order closing the right to further cross-examine the complainant substantially affects the rights of the revisionist and therefore, it cannot be termed as an interlocutory order. The judgment in Sethuraman case (Supra) does not seem to be applicable to the facts and circumstances of the present case.
15. In the present case, the ld Trial Court had closed the right of the revisionist to further cross examine the complainant vide impugned order dt. 20.12.2022. Here, it is important to observe that in cases u/s. 138 NI Act, the importance of cross-examination is much more higher as the burden of CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 9 Of 11 disproving the case of the complainant is upon the accused as the statutory presumptions u/s. 118 and 139 NI Act are standing against him. The perusal of the cross-examination conducted on 20.12.2022 would reveal that the cross- examination was not concluded in the cordial or congenial atmosphere. It is also not controverted that it was already 5.00 p.m. when the cross-examination was closed by the ld. Trial Court.
16. This Court is of the view that for proper and effective adjudication of the present case and in the interest of justice, one opportunity may be afforded to the revisionist to further cross-examine the respondent. The Ld. Trial Court shall fix a date and afford one opportunity to the revisionist 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 clarified that the order of the ld. Trial Court vide which cost was imposed upon the revisionist during cross- examination is not being set aside but, the ld. Counsel for revisionist is given the liberty to ask the questions relating to ITR to the revisionist, the relevancy of which shall be decided by the ld. Trial Court.
17. The present revision petition is partly allowed in above terms. The parties are directed to appear before the Ld. Trial Court on the date already fixed by the ld. Trial Court.
CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 10 Of 11
18. The TCR be sent back to the Ld. Trial Court alongwith the copy of this order.
19. Revision file be consigned to the Record Room.
Digitally signedSUSHIL by SUSHIL ANUJ TYAGI ANUJ Date:
Announced in the open Court on 04th January, 2024 TYAGI 2024.01.04 15:09:42 +0530 (SUSHIL ANUJ TYAGI) ASJ-04/CENTRAL/DELHI 04.01.2024(VR) CR No. 106/2023 B.K. Jha (Binoy Kumar Jha) Vs Brij Bhushan Attri Page No. 11 Of 11