Delhi District Court
Priyank Bhatia (Proprietor Of Abba ... vs Amit Jain ( Proprietor Of Saurabh Sagar ... on 15 May, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR. DLCT01-006533-2023
CR No. 284/2023
Abba Lighting
(Through its Proprietor Sh. Priyank Bhatia)
S/o. Late Sh. Arun Bhatia,
J-3/15, 1st Floor, DLF Phase-2,
Gurgaon-122002
..... Revisionist
Vs.
Saurabh Sagar Enterprises
(Through its Proprietor Sh. Amit Jain)
1892/7-A, 1st Floor, Har Ram Market,
Bhagirath Palace, Chandni Chowk,
Delhi-110006.
..... Respondent
Date of institution of Revision : 12.05.2023
Date on which order reserved : 15.05.2024
Date on which order pronounced : 15.05.2024
ORDER
1. The present revision petition u/s. 397 r/w Section 400 Cr.
CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 1 of 9 P.C. has been filed against the impugned order dated 16.03.2023 passed by the Ld. Trial Court of Sh. Chandra Bose, Ld. P.O., Special Court (NI Act), Tis Hazari Courts, Delhi in CC No. 1707/2016 titled as 'Saurabh Sagar Enterprises Vs. Abba Lighting, vide which the application u/s. 145 (2) NI Act of the revisionist has been dismissed by the ld. Trial Court.
2. The brief facts of the case necessary to decide the present revision petition are that the respondent has filed one complaint u/s. 138 NI Act against the revisionist. During the trial, vide order dated 10.07.2019, the ld. Trial Court framed notice u/s. 251 Cr. P.C. against the revisionist and on the oral prayer of the revisionist, the ld. Trial Court holding that the revisionist is having sufficient ground to cross-examine the complainant, allowed the oral prayer for cross-examination of the respondent. Thereafter, several opportunities were granted to the revisionist to cross- examine the respondent and finally vide order dated 09.05.2022, the ld. Trial Court closed the right of the revisionist to cross-examine the respondent. Later, the revisionist filed an application u/s. 145 (2) NI Act seeking permission to cross-examine the respondent but the same was dismissed by the ld. Trial Court holding that the said application is not maintainable.
3. Aggrieved by the said order, the revisionist has approached this Court on several grounds. It is contended by the ld.
CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 2 of 9 Counsel for revisionist that the ld. Trial court has failed to appreciate that the revisionist could not cross-examine the respondent due to facts and circumstances for the reasons beyond his control. It is further contended that either the Court was not functional due to lockdown in COVID or the proceedings were held through V.C. It is further contended that on few dates, the ld. P.O. was on leave or on training and on certain days, the respondent himself was not present. It is further contended that the revisionist lost track of his case due to which NBWs were issued against him which were later cancelled by the ld. Trial Court for the reasons appreciated by the ld. Trial Court. It is further contended that the impugned order passed by the ld. Trial Court is silent and non speaking order. It is further contended that the revisionist has a right to defend his case and great prejudice shall be caused to the revisionist if he is not allowed to cross-examined the respondent. It is therefore, prayed that impugned order passed by the ld. Trial Court may kindly be set aside. Ld. Counsel relied upon the following judgments in support of his arguments.
(a) Smt. Rani Kusum Vs. Smt. Kanchan Devi, Crl. AIR 2005 SC 3304;
(b) State of Punjab and Anr. vs. Shamlal Murari and Anr, AIR 1976 SC 1177;
(c) Collector Acquisition, Anantnag and Anr. vs. Mst. Katiji and Ors, AIR 1957 SC 1353;
(d) Liberty Footwear Company vs. Force Footwear Company and Ors., 2009 (41) PTC 474 (Del);
CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 3 of 9
(e) Kailash vs. Nankhu, AIR 2005 SC 2441;
(f) Salem Advocate Bar Association, Tamilnadu vs. Union of India, (AIR 2005 SC 3353
(g) Hashmikant M. Sheth vs. State, Gujarat, 2004 (2) GLH 783;
(h) Balakrishnan vs. M. Krishnamurthy, AIR 1998 SC 3222 and
(i) Om Prakash B, Maniyar vs. Swati Girish Bhide, 1993 Banking CLR 1242.
4. To the contrary, ld. Counsel for respondent argued that the impugned order passed by the ld. Trial Court suffers from no illegality or irregularity. It is further contended that the ld. Trial Court rightly passed the impugned order as the application u/s. 145 (2) NI Act was already allowed and the revisionist was granted ample opportunity to cross- examine the respondent which he has not availed despite several opportunities. It is further contended that there is no reason to interfere with the impugned order passed by the ld. Trial Court. It is prayed that the present revision petition may kindly be dismissed.
5. This Court has heard the rival contentions from both the sides and perused the judicial record.
6. In the present case, vide impugned order dated 16.03.2023, the ld. Trial Court while observing that the revisionist was permitted to cross-examine the respondent on his oral prayer vide order dated 10.07.2019, dismissed the application u/s. 145 (2) NI Act of the revisionist holding the same as not maintainable.
7. It is needless to mention that cross examination of the CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 4 of 9 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:
"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 CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 5 of 9 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, 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 CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 6 of 9 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, 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. In the present case, the ld Trial Court had dismissed the application u/s. 145 (2) NI Act thereby not allowed the revisionist to cross examine the respondent vide impugned CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 7 of 9 order dated 16.03.2023. It is apparent that on 10.07.2019, the revisionist was allowed to cross-examine the respondent but the averments raised by the revisionist are also not completely baseless as the whole world was hit by the Corona pandemic during the year 2020-2022.
15. It is also important to observe that in cases u/s. 138 NI Act, the importance of cross-examination is much more higher as the burden of 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.
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 subject to the cost of Rs. 20,000/- to be paid to the respondent. The Ld. Trial Court shall fix a date and subject to payment of cost, 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.
17. The present revision petition is allowed on above terms.
The parties are directed to appear before the Ld. Trial Court on the date already fixed by the ld. Trial Court.
18. The copy of this order be sent to the ld. Trial Court for CR No. 284/2023 Abba Lighting Vs Saurabh Sagar Enterprises Page No. 8 of 9 information and necessary action.
19. Revision file be consigned to the Record Room.
SUSHIL Digitally
by SUSHIL
signed
ANUJ ANUJ TYAGI
Announced in the open TYAGI
Date: 2024.05.15
15:04:08 +0530
Court on 15th May, 2024
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
15.05.2024(VR)
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