Indian Kanoon - Search engine for Indian Law

Delhi District Court

Subhash Gupta vs State & Ors Cr No.285/18 on 25 January, 2019

Subhash Gupta Vs State & Ors                        CR No.285/18


     IN THE COURT OF SH. MANISH YADUVANSHI, ADDL.
   SESSIONS JUDGE­05, WEST, TIS HAZARI COURTS, DELHI.

                                             C.R. No. 285/18
IN THE MATTER OF:­

Subhash Gupta,
Proprietor
M/s MSSS Inc.
Z­66, Rajouri Garden Extn.
New Delhi-110027.                           ....... Petitioner

                               Versus

Ms. Shashi Talwar,
Proprietor
M/s Shashi Prints,
J­9/63, Rajouri Garden Extn.
New Delhi­ 110027.

Also At:
523/11, Basai Darapur,
Bali Nagar, New Delhi.                            ...... Respondent

Date of Institution            :    13.09.2018

Date of arguments              :    11.01.2019

Date of Judgment               :    25.01.2019


Result: Petition allowed                             Page 1 of 35
 Subhash Gupta Vs State & Ors                             CR No.285/18




              JUDGMENT ON REVISION PETITION
                  UNDER SECTION 397 CR.P.C.

1. The present revision petition is filed challenging the correctness, legality and propriety of the order of ld. Trial Court dated 27.7.2018 passed during the cross examination of CW 1 on permitting the cross examining counsel (in this case respondent­accused) to put a particular question to the witness which, according to the revisionist tentamounts to an unsustainable review of earlier directions of the Court on the same issue previously decided on 16.8.2007 and subsequently affirmed by virtue of a speaking order dated 10.8.2017.

2. Brief facts are that on 24.4.2002, the respondent­accused had purchased cloth material from the petitioner­revisionist vide Bill No. 137 dated 24.4.2002 for a sum of Rs.14,95,003/­ and in discharge of her liability, the respondent issued three post dated cheques which were returned dishonoured on presentation with the remarks 'account closed'. A legal notice dated 18.6.2002 was also issued to the respondent but respondent failed to make the payment of the dishonoured cheques. The petitioner therefore filed a complaint case under Section 138 of the N.I Act.

Subhash Gupta Vs State & Ors CR No.285/18

3. On appearance of respondent in the Court, a Notice for offence under Section 138 N.I. Act in accordance of Section 251 Cr.P.C was served upon her to which she pleaded not guilty and claimed trial. Defence was not disclosed in response to this Notice. The legal notice dated 18.6.2002 is ExCW1/9. Its response dated 22.6.2002 is also on file.

4. Its perusal reveals that respondent was doing petty job work of cloth printing and she never purchased any cloth or sold any cloth in the market. The legal notice is said to be concocted and baseless which is premised on an intention to cheat the respondent and her family, she being the President of Mandal Mahila Morcha, a BJP Wing of Rajouri Garden Mandal. The Reply to Notice also disclosed that the complainant's wife Meera Gupta is also an activist of Mandal Mahila Morcha and therefore, both the sides were on visiting terms to the house of each other. In this capacity, the complainant and his wife had represented to the accused that they have good relations in Banks upon which the respondent requested to get a 'Bus' financed from a Bank or some other Financer for Rs. 6 lacs.

5. As per Notice, this transaction was further acted upon by the parties leading to the accused signing 30 promissory notes and issued 30 blank cheques of Rs.20,000/­ each. Signatures were obtained on the pretext that complainant was searching for a suitable Bank or Financier. However, subsequently, the accused was made to sign on Result: Petition allowed Page 3 of 35 Subhash Gupta Vs State & Ors CR No.285/18 five more cheques on the pretext that 30 cheques were not enough. As the accused's family was in dire need of funds for Bus, therefore, the cheques were signed. These cheques were drawn on Oriental Bank of Commerce, Tagore Garden, New Delhi. No vehicle was got financed and on asking, Meera Gupta and complainant told that the Cheques and Promissory Notes have been misplaced. It is claimed that even accused forgot about the cheques which have now been misused on the pretext of supply of cloth material.

6. It is apparent that the cross examination of the complainant­ petitioner which is now continuing since last 11 years is premised on the above defence.

7. Thus on 16.8.2007, respondent's counsel asked the name of supplier but the question was rejected. The ld. Trial Court held that, "Objection sustained as business secret need not be disclosed."

8. Subsequently, the respondent filed an application dated 11.9.2013 seeking direction to the complainant to disclose the name and other relevant facts as to from where the complainant purchased the articles allegedly sold to the accused vide bill No. 137 (ExCW1/1). Similar verbatim application and its copy dated 4.12.2014 were also filed during pendency of previous application.

Subhash Gupta Vs State & Ors CR No.285/18

9. The ld. Trial Court decided the application dated 11.9.2013 on 10.8.2017 by holding it to be misconceived because the question relating to the source of purchase of certain pieces of cloth has already been disallowed by the ld. Predecessor of this Court in the evidence recorded on 16.8.2007 and this Court having no power to review its own order, the sole course available to the accused was to go in appeal and not to file the present application."

10. Recently, on 27.7.2018, the respondent again attempted to scuttle the previous observation of the Court by putting a particular question which is as under:

"Q. Please tell the particulars of the person, his name and address, firm name from whom you have purchased the alleged goods as mentioned in Ex.CW1/1 as you are trying to conceal his name as you have not purchased any goods or supplied to the accused and thus the accused wants to examine that witness to see the veracity of the allegations"

11. The question was objected to but the objection was over ruled holding that the ld counsel for respondent is not simply asking the name of the supplier without any relevance but to prove that the complainant never took any material from supplier so as to further Result: Petition allowed Page 5 of 35 Subhash Gupta Vs State & Ors CR No.285/18 supply to the accused­respondent, so the said question is relevant and the Court allowed the same and cautioned if the complainant/petitioner does not disclose the name of the supplier an adverse inference will be drawn against him.

12. The above directions are challenged on various grounds interalia that:

(i) That the order passed by the ld. Trial Court is bad in law and against the material available on record.

(ii) That the ld. Trial Court failed to appreciate the law laid down in Adalat Prasad Vs Roop Lal Jindal & Ors passed by the Hon'ble Apex Court as per which a Magistrate can not recall its own order and thus the ld. Trial Court has superseded its jurisdiction.

(iii) That the ld. Trial Court failed to appreciate that putting the question regarding the name/details of supplier of goods is strictly barred being business/trade secret and thus, the impugned order overruling the objection of the petitioner, is bad in law and is liable to be set aside.

(iv) That the order passed by the ld. Trial Court is in violation of the principles of natural justice as well as criminal jurisprudence.

13. Notice of the petition was issued to the respondent subject to its maintainability. The respondent has contested the petition. TCR was called for. Detailed arguments have been heard.

Subhash Gupta Vs State & Ors CR No.285/18

14. On maintainability, the petitioner's counsel submits that the directions passed in the order impugned tentamounts to deciding the issue of relevancy with finality and hence, the revision petition is maintainable. On merits, it has been argued in terms of the grounds taken in support of the revision petition.

15. Conversely, the respondent has contested the petition submitting that there has been no transaction as alleged and the entire cross examination would reveal that the very existence of the firm of the complainant namely M/s MSSS Inc. is being challenged. It is submitted that the complainant has been maintaining a stand that he supplied enormous quantity of cloth material but is refusing to disclose the name of his own supplier whom, the respondent now intends to call in witness box in order to rebut the presumption under Section 139 and 118 of the N.I. Act. Following judgments are cited:

1. Irfan Badshah Vs State 2013 (2) JCC 940 : It is submitted that under Section 148 of the Indian Evidence Act, the Courts conducting trial have to use their discretion in disallowing irrelevant questions during cross examination.

2. Bipin Shantilal Panchal Vs State of Gujrat & Anr.

AIR 2001 SC 1158 wherein it is held that, "When so recast, the practice which can be a better substitute is Result: Petition allowed Page 7 of 35 Subhash Gupta Vs State & Ors CR No.285/18 this. Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable, the Judge or Magistrate can keep such evidence excluded from consideration. In our view, there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed."

3. State through Special Cell New Delhi Vs Navjot Sandhu @ Afshan Guru & Ors. JT 2003 (4) SC 605 :

In this case, judgment of Bipin Shantilal Panchal (Supra) has been followed besides other judgments. It is relied on the same analogy that is referred to above in Bipin Shantilal Panchal's case (Supra).

Subhash Gupta Vs State & Ors CR No.285/18

4. M.S Narayana Menon @ Mani Vs State of Kerala & Anr. V (2006) SLT 252 wherein it is held that, "Dishonour of cheque­Presumption_ Rebuttal­ Cheque not issued in discharge of any debt or other liability but by way of security - Defence evidence probable ­Appellant only to discharge initial onus of proof and not to disprove prosecution case - Books of accounts maintained by IInd respondent does not reflect correct state of affairs. Discrepancy of more than Rs.14,00,000/­ found - Onus on accused not as heavy as that of prosecution - Appellant clearly said nothing is due and cheque was issued by way of security. If defence accepted as probable, cheque therefore, can not be held to have been issued in discharge of debt -

IInd respondent failed to prove appellant paid to him sum of Rs.5,000/­ by cash - Impugned judgment unsustainable set aside - Negotiable Instruments Act, 1881 - Section 138, 118(a), 139.

(v) d. Evidence Act - Presumption drawn in respect of one fact may be evidence for purpose of drawing presumption under another."

5. Indian Renewable Energy Dev. Agency Ltd Vs Result: Petition allowed Page 9 of 35 Subhash Gupta Vs State & Ors CR No.285/18 Debts Recovery Appellate Tribunal & Ors. 127 (2006) DLT 158 (DB) : The judgment is cited to define scope and ambit of an interlocutory order to the effect that order allowing or rejecting the application for cross examination is only an interlocutory order. Para 8 is relied upon which is to the effect that, " An order allowing or rejecting an application for cross examination is only an interlocutory order. In the present case by the interlocutory order the application for cross examination has been partly allowed. In our opinion, this does not give rise to any cause of action. It is only when the final order is passed by the DRT disposing the proceedings before it finally that a cause of action will arise. In any event, writ jurisdiction is discretionary jurisdiction and a writ petition is not ordinarily entertained against an interlocutory order."

6. Sethuraman Vs Rajamanickam 2009 Crl. L.J. 2247 : It is stated that, "Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly Result: Petition allowed Page 10 of 35 Subhash Gupta Vs State & Ors CR No.285/18 barred under Section 397(2) Cr.P.C. The Trial Court in its common order had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders i.e. one on the application under Section 91 Cr.P.C for production of documents and other on the application under Section 311 Cr.P.C 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. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed."

7. Neelam Mahajan & Anr Vs The State & Ors Crl.

M.C 2242/2014 delivered on 8.4.2016 : In this case, on 26.8.2013, the Ld. MM concerned allowed the Result: Petition allowed Page 11 of 35 Subhash Gupta Vs State & Ors CR No.285/18 application under Section 311 Cr.P.C which was challenged before Hon'ble High Court of Delhi. The judgment is on the scope of interlocutory order and scope of review. It was held that, "20. After perusing the impugned order as well as the material placed before this Court and in the light of the facts and circumstances of the present case this Court is also of the opinion that every interlocutory order merely because it disposes of an aspect, may a vital aspect in the course of a pending proceeding even adversely affecting a party for the time being would not be something other than interlocutory.

21. This Court also perused the order passed by the revisional Court holding that the order passed under Section 311 Cr.P.C is interlocutory order and therefore, the same is not revisable and this Court finds no reason to disagree with thereto."

8. Vinay Parulekar Vs Pramod Meshram II (2008) CCR 172 : The judgment has been cited in respect of the proposition that it is not necessary for the accused to disprove the existence of consideration by way of direct evidence. Inference of preponderance of Result: Petition allowed Page 12 of 35 Subhash Gupta Vs State & Ors CR No.285/18 probabilities can be drawn not only from the material on record but also by reference to the circumstances upon which he relies. The accused can raise a probable defence from the material brought on record by him, so also by the complainant himself. Though it is obligatory on the Court to raise presumptions contemplated under Sections 118, 138 and 139 in every case, where the factual basis for raising of the presumption has been established, what is needed for the accused is to raise a probable defence or that the consideration does not exist. The presumption could be rebutted either by leading evidence or bringing facts on record in cross examination of the complainant which could make the case of the complainant improbable that the cheque was issued in discharge of any debt or other liability or through the documents produced and proved through the complainant.

9. Varun Aggarwal Vs State of NCT of Delhi & Anr. Crl. M.C. 2424/2017 dated 5.12.2017 : The judgment is again cited on the ambit of an interlocutory or interim order. It is held that, "For instance, orders Result: Petition allowed Page 13 of 35 Subhash Gupta Vs State & Ors CR No.285/18 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 s. 397(2) of the Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial can not be be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court."

16. Rebuttal arguments were also addressed on behalf of the petitioner. In support of its contentions, following judgments are cited:

1. Madhav Rao Scindia Vs Union of India AIR 1971 SC 530 contending that it is held therein that, "It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."

2. It is contended that as per judgment in Commissioner of Income Tax Vs Thana Electricity Supply Ltd. 1994 I.T.R (Vol.206) 727, where there Result: Petition allowed Page 14 of 35 Subhash Gupta Vs State & Ors CR No.285/18 are conflicting decisions of Courts of co­ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions.

3. Rajeshbhai Chandubhai Vs State of Gujarat 2001 Crl.L.J. 3039 contending that it is held therein that if a statement is made by a witness to the police, then the accused has a right to cross examine the said witness on that statement which is his absolute right and the order denying the said right can not be termed as interlocutory order.

4. Madhu Limaye Vs The State of Maharashtra 1978 AIR 47 SC : This judgment is again on the term interlocutory order. It has been held that, "An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main Result: Petition allowed Page 15 of 35 Subhash Gupta Vs State & Ors CR No.285/18 dispute, may be conclusive as to the subordinate matter with which it deals."

It is further held that, "By a rule of harmonious construction, we, think that the bar in sub­section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub section (2) of Section 397. In our opinion, it must be taken to be an order of the type falling in the middle Result: Petition allowed Page 16 of 35 Subhash Gupta Vs State & Ors CR No.285/18 course."

5. Adalat Prasad Vs Roop Lal Jindal & Ors. (2004) 7 SCC 338 : This judgment is to the effect that the Court has no power to recall a summoning order.

6. Manish Aggarwal Vs Seema Aggarwal & Ors FAO No. 388 of 2012 dated 13.9.2012 : In the instant case, issue arose that whether a revision lies against the grant of maintenance under Section 125 Cr.P.C., it being alleged to be interlocutory nature order. It was held that such order was intermediate or quasi final order. 2010 (3) MPLJ 151. The analogy was drawn from Section 397 (2) Cr.P.C and judgment of Hon'ble Apex Court in AIR 1977 SC 2185 thereby finally holding that, "an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable Result: Petition allowed Page 17 of 35 Subhash Gupta Vs State & Ors CR No.285/18 under Section 397(2) of the Cr.P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders."

"Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgment drew strength also from the observations of the Supreme Court in Madhu Limaye (Supra) where the Supreme Court held that ordinarily and generally the expression interlocutory order has been understood and taken to mean as a converse of the term final order. But the interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. In V.C Shukla Vs State 1980 (2) SCR 380 the Supreme Court held that the term interlocutory order used in the Cr.P.C has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was Result: Petition allowed Page 18 of 35 Subhash Gupta Vs State & Ors CR No.285/18 not purely interlocutory but intermediate or quasi final."

17. I shall first touch upon the issue of maintainability and also mention the fact that at the time of issuance of Notice on the present petitioner,this Court had found prima­facie that, "From the record, it appears that the revision petition is maintainable.

Subject to further consideration upon the same, issue notice of the petition to respondent no. 2 vide PF/RC/Courier for NDOH".

18. The arguing counsel has cited various judgments that delineate the aspect pertaining to interlocutory orders. Section 397(2) Cr P.C bars a revision petition in relation to any interlocutory order passed in any appeal from inquiry, trial or other proceedings. The Court has perused the ratio­decidendi in the relevant cases referred earlier in this order.

19. It is is apparent that the orders which are in the matter of the moment and which decide rights of a party to the lis finally are not in the domain of interlocutory orders. I may as well quote from Amar Nath & Ors Vs State of Haryana & Ors. 1977 AIR 2185; 1978 SCR (1) 222, relevant extract of which is quoted herein Result: Petition allowed Page 19 of 35 Subhash Gupta Vs State & Ors CR No.285/18 under;

"The main question which falls for determination in this appeal is as to, the what is the connotation of the term "interlocutory order" as appearing in sub­s (2) of s. 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well known legal significance and does not present any serious diffident. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to, us that the term "interlocutory order" in s.397(2) of the 1973 Code has been used in a restricted sense and not in any broad or Result: Petition allowed Page 20 of 35 Subhash Gupta Vs State & Ors CR No.285/18 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 decides certain rights of the parties can not 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 s.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 s.397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial can not be said to be interlocutory order so as to Result: Petition allowed Page 21 of 35 Subhash Gupta Vs State & Ors CR No.285/18 be outside the purview of the revisional jurisdiction of the High Court. In Central Bank of India v Gokal Chand (1) this Court while describing the incidents of an interlocutory order, observed as follows "In the context of s.38(1), the words "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which are, merely procedural (1) AIR 1967 S.C 799, 800 and do not affect the rights or liabilities of the parties. In a pending proceeding the Controller, may pass many interlocutory orders under ss.36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the Result: Petition allowed Page 22 of 35 Subhash Gupta Vs State & Ors CR No.285/18 prosecution of their cases in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties."

20. In the case before me, the ld. Trial Court, while deciding the objection of the complainant­petitioner­CW1 in his cross examination dated 27.7.2018 has not merely recorded the same but has decided the said objection finally thereby not leaving the option open for decision thereupon at the final stage i.e. the time of pronouncement of judgment. Further, the Court also held that if complainant did not answer the question, adverse inference shall be drawn against him. This decision on the objection has the effect of finally deciding the right of the complainant and the accused­ respondent in as much as the matter pertained to a specific line of defence in the cross examination which need not be repeated being part of the impugned order.

21. Thus, in my considered view, the present revision petition is maintainable against order dated 27.7.2018.

22. I shall next take up the issue as to whether the said order suffers from any illegality, impropriety or an error of finding or not.

23. The ld counsel for parties have actually argued the matter as if this Court was hearing final arguments and in the process, this Court was Result: Petition allowed Page 23 of 35 Subhash Gupta Vs State & Ors CR No.285/18 taken to almost the entire file of ld. Trial Court.

24. I have already mentioned that the trial Court had earlier decided the application of respondent dated 11.9.2013. There was similar application dated 4.12.14. The last page of original application is not on record of ld Trial Court. A photocopy of complete application including the last page is on trial Court's record. It stands signed by the counsel for respondent. According to respondent, second copy of application was filed as the original of the third page was not on judicial record. Such an endorsement certifying the above is not found in any of the daily order sheets.

25. Nevertheless, both the applications are verbatim. The ld Trial Court decided the previous application dated 11.9.2013 on 10.8.2017. In my view, the later application dated 4.12.2014 was left undecided but no illegality or irregularity in it can be found, both the applications being verbatim. Moreover, the order dated 10.8.2017 is not the subject matter of present revision petition, it being the subsequent order dated 27.7.2018 only.

26. In Paragraph 2 and 3 of this order, this Court has briefly set out the case for the complainant and defence of the respondent.

27. What is material is that the respondent did not apply for stopping the payment, if any, regarding 30 cheques that she issued. Subject matter Result: Petition allowed Page 24 of 35 Subhash Gupta Vs State & Ors CR No.285/18 of the complaint case is only 3 cheques. Perusal of these cheques which are exhibited as ExCW1/2, ExCW1/3 & ExCW1/4 respectively shows that in the date column, figure '19' is already printed referring to first two digits of the relevant year. What implies is that the cheques pertain to 20 th Century A.D whereas they have been shown to have been drawn as PDCs and dated 24.5.02; 29.5.02 and 5.6.02 respectively.

28. The complaint describes that the transaction of supply of cloth material took place in April 2002 and Bill No. 137 was raised on 24.4.2002. The respondent seems to have used cheques from cheque book pertaining to the series which she got issued from her Banker before the year 2000. It is specifically mentioned in reply Notice that the cheques were given 5­6 years back. They were blank but signed. Reply notice is dated 22.6.2002. It is in the reply notice that respondent had forgotten about the cheques and it was not in her memory. She never doubted that the same can be misused. She clarified that there have been no transactions in her bank account for last 3­4 years. Interestingly, the reason for dishonour of cheques is closure of bank account.

29. It is in reply notice that Meera Gupta had told the respondent that Cheques and Promissory Notes were misplaced. It is further in the reply notice in Para 11 that on account of some doubts, the Result: Petition allowed Page 25 of 35 Subhash Gupta Vs State & Ors CR No.285/18 respondent went to her Banker and closed her account. Date is not provided. Also no instructions regarding stopping payment of 30 cheques is issued.

30. Faced with such pleadings, the trial Court passed various orders from time to time regarding one peculiar question regarding name of supplier of the complainant.

31. The complainant, as per complaint, is in the business of "sale and purchase of cloth materials". He does not say that he has a manufacturing unit. Complaint is silent about source of consignment that was supplied. The supply order is also huge considering that the transaction took place 16 years ago i.e. year 2002. The copy of bill dated 24.4.02 is ExCW1/1. Accounts books are not filed. However, form no. 2D (SARAL) ITS 2D which is ITR furnished by the complainant for Assessment year 2002­03 is ExCW1/A. Statement of Assessable income, Trading, Profit and Loss Account for the year ending 31st March 2002 and the Balance Sheet of Msss Inc. Proprietor Subhash Gupta as on 31.3.2003 is part of ExCW1/A. It shows sundry debtors of Rs.14,95,003/­ which is the exact amount in the Bill ExCW1/1.

32. To rebut this case of the complainant, the accused has been cross examined at length.

Subhash Gupta Vs State & Ors CR No.285/18

33. On 21.7.2008, CW 1 deposed, "I know accused since late 1980 or early 1990. To my knowledge, accused was working in some cloth business". Suggestion to the contrary was not given. It is on record that the accused had a wish to do cloth business.

34. On the same day, CW 1 clarified that, "I am not the manufacturer of goods. I am only a Trader. I did not import the same. It was my local purchase".

35. It is therefore, clarified that CW1 is merely a Trader and not a manufacturer. He purchased the goods locally. Hence, he was asked, on the same day as under:

"Q.Can you tell me from which market or place you have purchased this ?

A. Same is trade secret.".

36. Previous to it, in earlier cross examination dated 16.8.2007 a similar attempt was made which is as under:

"I have shown the amount of Rs.14,95,000/­ in my income tax return. I have shown the aforesaid amount in the list of my debts. I have bought the goods in respect of bill in question from my supplieer name of whom I do not want to disclose as the same is my business secret. I have not paid the entire amount to the aforesaid supplier but I have been paying the Result: Petition allowed Page 27 of 35 Subhash Gupta Vs State & Ors CR No.285/18 amount slowly and in installments. I do not remember the exact amount of installments being paid. I have shown the amounts due on me to my supplier in my Income Tax Return. The counsel insists on name of supplier. The counsel for complainant objects for the same. Heard. Objection sustained a Business secret need not be disclosed. It is incorrect to suggest that my firm is bogus firm, I have never suipplied any goods to any firm and I have never received any supplies from any supplier."

37. Thus in order to rebut the presumption, the case of the defence is that complainant never supplied any cloth material and that he did not purchase any cloth material from any one as he did not name his supplier. Nevertheless, attempt of complainant for knowing the name of supplier was nipped in the bud by a speaking order on the objection (as above) by the Trial Court on 16.8.2007 itself. This is first instance when the counsel insisted on name of supplier and the Court held that business secret need not be disclosed. Subsequent to it, the complainant was put with a different question (as above) wherein name of supplier was not asked but name of market or place was asked for.

38. The said observation of the Court of holding that the complainant is Result: Petition allowed Page 28 of 35 Subhash Gupta Vs State & Ors CR No.285/18 not required to reveal name of his supplier, it being a business secret attained finality after 16.8.2007, order was not challenged. It is another matter that this Court can not find a justifiable and sustainable reason as to which law protects non disclosure of business secret even to the Court. The powers of revision can be exercised suomoto by this Court. I shall refrain to interfere with observations dated 16.8.2007 as much water has since flown over the issue.

39. It is so as the defence again attempted to put the same very question in a different manner in the cross examination dated 24.8.2017 to the following effect that, "the items mentioned in ExCW1/1 were not in stock with me. I had purchased the items mentioned in ExCW1/1 from the market and thereafter, delivered/supplied them to the accused.

Q. During cross examination you have stated that you do not want to disclose the name of the person from whom, you allegedly purchased the goods mentioned in ExCW­1/1. Can you tell from which part of the city or market, it was purchased ?

Ans. I had purchased the said goods from Chandni Chowk Result: Petition allowed Page 29 of 35 Subhash Gupta Vs State & Ors CR No.285/18 Market, Delhi.

Q. There are many small markets in Chandni Chowk. Can you tell the exact market from where you purchased the said goods ?

Ans. I had purchased the goods from Kucha Natwa"

40. Thus, the constant defence of the respondent is clearly visible from continuous cross examination on this issue. This Court fails to understand as to why the defence is under impression that the only way to rebut the Presumptions­in­law under the N.I Act is to keep on the cross examination of CW1 alive. Complete defence is yet to be disclosed in the statement U/s 281 r/w 313 Cr.P.C and the accused can also lead defence evidence to further rebut the presumption.

41. Nevertheless, the defence continued with same approach in the cross examination and moved application dated 11.9.2013 wherein she sought Court directions to complainant to disclose name and other relevant facts as to from where complainant purchased articles allegedly sold to accused vide ExCW1/1. These questions are in Para 5 of said application. I have already referred to the consequent order dated 10.8.2017 on this application. The relevant part of said order reads as under:

"The first question relates to source of purchase of certain Result: Petition allowed Page 30 of 35 Subhash Gupta Vs State & Ors CR No.285/18 pieces of cloth which has already bee disallowed by Ld. Predecessor of this Court in the evidence recorded on 16.8.2007. Clearly, this Court has no power to review its own order and therefore, the sole course available to the accused was to go in appeal and not file the present application. Further and in any case, the relevance, admissibility and sustainability of any question that the accused wishes to put to the complainant in his cross examination shall be decided at the time of cross examination and not by way of present application".

42. Thus the Court went with earlier order dated 16.8.2007 holding that it can not review the said order on the source of purchase of cloth material.

43. While passing the impugned order, the ld Trial Court seems to have swayed with the fact that at that juncture, the cross examining counsel had asked the question on source of cloth material on adamance of complainant to not to answer the same and then making out a case for him to disclose the name of supplier so that the defence can call the supplier in witness box as a defence witness.

44. The observation of the Court stands recorded in Para 9 of this Revision Petition.

Subhash Gupta Vs State & Ors CR No.285/18

45. The Trial Court went on a premise that the question regarding particulars of person, his name and address as well as firm name became relevant as the counsel was not merely asking the name only but with an intent to prove that complainant never took any material from the supplier. Thus, the Court allowed it and cautioned the witness that if does not disclose the same, adverse inference will be drawn.

46. The questions that can be asked legally in the cross examination are to be confined in the ambit of Section 146 of the Indian Evidence Act and it is lawful to ask any question which tend­ (1) to test his veracity;

(2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

47. Under Section 147 of the Indian Evidence Act, if any such question relates to a matter relevant to the suit or proceeding, Court shall apply provision of Section 132 of the Act which does not excuse the witness from answering on the ground that the answer will criminate.

48. Section 148 of the Indian Evidence Act empowers the Court to Result: Petition allowed Page 32 of 35 Subhash Gupta Vs State & Ors CR No.285/18 decide when question shall be asked and when witness compel to answer.

49. The Trial Court held that the sole question put to the witness in his cross examination dated 27.7.2018 is relevant. In case of relevant questions, it is Section 147 of the Act which will apply. In case of question relating to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of witness by injuring his character, the Court will have to decide whether or not the witness shall be compelled to answer it and while doing so, it shall have regard to the considerations in Sub Section (1) to (4) of Section 148 of the Indian Evidence Act.

50. In the instant case, the court has not decided that the question is irrelevant but would affect the credit of witness by injuring his character. On the contrary, the trial Court has held that the question is relevant. However, the trial Court has, instead of falling back on Section 132 of the Indian Evidence Act, proceeded to explain to the witness that refusal to answer will lead to an adverse inference. Such power is available to the Court under Section 148(4) of the Indian Evidence Act.

51. In my considered view, the approach of Trial Court in determining the question as relevant has led to an illegality in the order impugned Result: Petition allowed Page 33 of 35 Subhash Gupta Vs State & Ors CR No.285/18 considering the fact that the same issue has been earlier decided not only by the Predecessor Court on 16.8.2007 and by the Trial Court itself on 10.8.2017. Here, the Court has ignored the fact that the very defence of the accused right from the beginning is that no such material was supplied. Nothing prevented the accused from having proceeded to ask the same question from CW1 on previous occasions. Re­visiting the said observation has tentamounted to a literal Review which is beyond the domain of Ld. Trial Court.

52. This Court is not in agreement with the counsel for the respondent that presumption drawn in respect of one fact may be evidence for purpose of drawing presumption under another. The relevant judgments on this issue which are cited are not applicable to the facts of the present case as this Court finds that the order impugned is a literal Review of previous directions which attained finality in due course.

53. Consequently, the determination on the question in issue made by the Trial Court during running cross examination of CW1 dated 27.7.2018 is hereby set aside. The counsel shall not insist on name, address etc of the supplier and the cross examination shall be conducted in sync with the directions already on record.

54. While exercising powers U/s 397 Cr P.C this Court disallows the Result: Petition allowed Page 34 of 35 Subhash Gupta Vs State & Ors CR No.285/18 question put to CW1 on 27.7.2018 in view of the earlier determination of the issue dated 16.8.2007. Needless to say that the answer of PW 1 to the question in Para 10 of this order was not objected to by the defence and at that time also, the previous directions on the issue recorded in earlier order dated 16.8.2007 had attained finality.

55. Ld. Trial Court is requested to conclude the cross examination on next date of hearing and in any case within two months of receipt of this order.

56. Let copy of this judgment be sent to the Ld. Trial Court/its successor Court for intimation/compliance.

57. Nothing expressed herein shall tentamount to an expression on the merits of the case.

58. Parties are directed to appear before the Ld. Trial Court on 1.2.2019.

59. File of revision petition be consigned to record room after all necessary compliances.

ANNOUNCED IN THE OPEN ( MANISH YADUVANSHI ) COURT ON : 25.01.2019. ASJ­05 (West), THC, Delhi.

                                  MANISH                  YADUVANSHI
                                  YADUVANSHI              Date: 2019.01.28
                                                          16:33:41 +0530
Result: Petition allowed                                   Page 35 of 35