Delhi District Court
Vippy Kapoor vs Anand Automobiles on 7 December, 2018
IN THE COURT OF SH. ANIL KUMAR SISODIA:
SPECIAL JUDGE (PC ACT) (CBI)-04/ADDL. SESSIONS JUDGE
CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
CNR No. DLCT01-014360-2018
Criminal Revision No. 782/2018
Vippy Kapoor
s/o Sh. R. P. Kapoor,
R/o H. No. 16/373, 2nd Floor,
Gali No. 12, Joshi Road,
Karol Bagh, New Delhi 110005 .... Revisionist
Versus
Anand Automobiles
through its Prop. Devender Anand
s/o Sh. Ramesh Anand
Works at Shop No. 1031,
Gali No. 17, Naiwala,
Karol Bagh, New Delhi 110005. .... Respondent
Date of Institution of revision : 30.10.2018
Date of Reserving Order : 07.12.2018
Date of pronouncement : 07.12.2018.
ORDER
1. By this order, I shall dispose of the present revision petition filed by the revisionist challenging the orders dated 11.07.2018 and 28.09.2018 passed by the Ld. Trial Court.
2. Briefly stated, the facts necessary for disposal of this revision petition are that respondent herein filed a complaint case under Section 138 of Negotiable Instruments Act against the revisionist/accused herein. Revisionist was summoned vide CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 1 of 14 order dated 01.04.2015. Thereafter, notice under Section 251 Cr.P.C. was served on the revisionist on 09.11.2015 and matter was listed for cross-examination of complainant. Vide order dated 28.06.2017, the opportunity to cross-examine the complainant was closed. Thereafter, revisionist filed an application under Section 311 Cr.P.C. for recalling the complainant for his cross-examination. Vide order dated 11.07.2018, Ld. Trial Court dismissed the application filed by the revisionist and matter was listed for statement of accused on 26.09.2018. On 26.09.2018, revisionist/accused left the court without informing the court about his ill health whereupon NBWs were issued against him. On 28.09.2018, revisionist appeared with an application for cancellation of NBWs which was cancelled, subject to cost of Rs. 10,000/- to be paid to the complainant for delaying the matter.
3. Aggrieved with the aforesaid orders dated 11.07.2018 and 28.09.2018, revisionist has filed the present revision petition on the ground that cross-examination of the complainant/CW-1 could not be done on 28.06.2017 as previous counsel was in personal difficulty on account of serious illness of his mother. It was further submitted that the Ld. trial Court dismissed the application under Section 311 Cr.P.C. in haste of deciding the case quickly, wrongly and erroneously fixed the case for sttement of accused despite the fact that revisionist in his plea has stated that he wants to lead evidence in defence. It was also submitted that the Ld. Trial Court failed to appreciate that the revisionist fell ill due to sudden low sugar and left the court on 26.09.2018 and despite showing the medical record, cost of Rs.
CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 2 of 1410,000/- was imposed while cancelling the NBWs on 28.09.2018. A prayer has been made for setting aside orders dated 11.07.2018 and 28.09.2018 and allowing the application under Section 311 Cr.P.C. filed by the revisionist and granting him opportunity to cross-examine CW-1 and such order as may be deemed fit.
4. Along with revision petition, revisionist has also filed an application under Section 5 of Limitation Act seeking condonation of delay of 20 days in filing the revision petition against order dated 11.07.2018. In the application, it has been stated that accused/applicant's present counsel was engaged by the revisionist on 25.09.2018 and he applied for certified copy of the complete file as the previous counsel did not return the file. The revisionist kept on requesting previous counsel for filing the revision but previous counsel neither filed revision petition nor returned the file. The revisionist obtained the certified copy of complete file on 25.10.2018 and thereafter, the present revision petition was filed. A prayer was made for condonation of delay of 20 days in filing the revision petition.
5. Notice of the revision petition was issued to the respondent. Respondent has appeared and filed reply to the revision petition as well as reply to the application for condonation of delay.
6. In the reply it has been submitted that the revisionist has challenged two independent, separate and distinct orders by a single revision petition which is not permissible and the revision petition is liable to be dismissed on this ground alone. It is further stated that the challenge to order dated 28.09.2018 is CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 3 of 14 totally baseless, illegal and uncalled for as the Ld. Trial Court was fully competent, empowered and justified in imposing a cost of Rs. 10,000/- on the revisionist while cancelling NBWs issued on 26.09.2018. It was further submitted that the revisionist has got a long history of adopting delay tactics and because of his clear intention to delay the matter, adverse orders have been passed against him one after other. In the present case not only right of cross-examination was closed but application under Section 311 Cr.P.C. was also dismissed and besides this, in three civil suits filed by the respondent on the basis of the same cheques not only right of revisionist to file written statement has been closed, in two cases his application for review has also been dismissed. The perusal of the orders of the respective courts would show that he has clever and careful modus operandi to seek pass over in the morning hour on the ground that the counsel is busy in another court and at the time of second call to make himself absent on the false ground of illness. A prayer was made for dismissal of the revision petition.
7. In reply to the application for condonation of delay, it has been submitted that the present counsel for the revisionist appeared as early as on 13.08.2018 and 12.09.2018 in the civil suit bearing No. 2843/2017 and as such it cannot be said that the present counsel was engaged on 25.09.2018. On merits, contents of application have been denied and it has been stated that the revisionist had taken file from the previous counsel on 11.07.2018 and question of asking the previous counsel to prepare the revision petition does not arise and the present counsel had put in first appearance in the matter of the CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 4 of 14 revisionist on 13.08.2018. Revisionist has failed to give the date on which he had applied for certified copy. It is also submitted that it is the modus operandi of the revisionist to delay the matter in one way or other and the perusal of the order sheets would clearly reveal that the revisionist only wants to delay the matter. Revisionist has failed to show any sufficient cause for the condonation of delay in filing revision petition, hence, applicable is liable to be dismissed.
8. I have heard arguments advanced by Ld. Counsels for the parties and have perused the record carefully. Trial court record was called before hearing the arguments.
9. Ld. counsel for the revisionist has argued that the impugned orders have been passed in haste without giving proper opportunities to the accused/revisionist to cross-examine the complainant. Ld. Counsel for the revisionist has read various orders passed by Ld. Trial Court to show that CE was closed on the third effective opportunity itself despite the fact that revisionist had only sought pass over and not adjournment on that day, i.e. 28.06.2017. It was argued that in the order dated 28.6.2017, Ld. Trial Court did not even record the request of accused/revisionist to pass over the matter and CE was closed and case was adjourned to 24.10.2017 for remaining PE. The revisionist filed application under Section 311 Cr.P.C. on 24.10.2017 which was dismissed vide impugned order dated 11.07.2018 and matter was listed for statement of accused for 26.09.2018. She further argued that on 26.09.2018 the revisionist was present on the first call and the matter was passed over for 30 minutes and the revisionist who is a patient CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 5 of 14 of diabetes suddenly became ill and left the court before the second call. Proxy counsel for the revisionist informed this fact to the court but NBWs were issued against the revisionist on the ground that why the revisionist had left the court without intimating and the case was adjourned to 14.12.2018. It was further submitted that revisionist filed application for cancellation of NBWs which was cancelled subject to cost of Rs. 10,000/-. Ld. Counsel for the revisionist has also placed reliance on judgments of Hon'ble High Court of Himachal Prdesh in Sunder Lal Vs. Urmila Thakur in Crl. Rev. No. 313 of 2017 decided on 16.03.2018 and Duli Chand Vs. Godawari in Crl. M. No. 349 of 2016 decided on 12.07.2017 in support of her arguments.
10. Ld. counsel for the revisionist also argued on the application under Section 5 of the limitation Act for condonation of delay of 20 days in filing the revision petition on the ground that the revisionist had changed his counsel and new counsel was engage on 25.09.2018 and thereafter she applied for certified copy of the complete file which was provided on 25.10.2018 and thereafter the present revision petition was filed on 29.10.2018. It was argued that delay was not deliberate but due to aforesaid reason and prayer was made for condonation of delay.
11. Ld. counsel for the respondent/complainant has vehemently opposed the present revision petition on the ground that revisionist/accused is deliberately delaying the disposal of the cases. It has been argued that the revisionist as well as his counsel are in the habit of making wrong submissions before the court for seeking adjournment and thereby causing delay in the cases. It has been argued that not only in the criminal cases but CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 6 of 14 also in the civil suits, conduct of the revisionist has remained the same and he has been adopting dilatory tactics to delay the disposal of the cases. He has also read over orders passed by civil courts in the civil suits to show the conduct of the revisionist as well as his counsel. He has also argued that even in the application under Section 311 Cr.P.C., revisionist levelled false allegations against the counsel for the complainant/respondent and the Ld. Trial Court and he does not deserve any sympathy from the court and the revision petition should be dismissed with heavy cost.
On the application for condonation of delay, it has been argued that the same is based on false facts. The counsel for revisionist was engaged in the case much prior to the date mentioned in the application and had knowledge about the pendency of the criminal cases. He has argued that when previous counsel was changed by the revisionist in the civil suits and new counsel was engaged, it is beyond comprehension that he would request the previous counsel to file the revision in the criminal cases.
12. In rebuttal counsel for the revisionist has rebutted the arguments of counsel for the respondent and has reiterated the arguments advanced by her. She has further argued that merely because revisionist changed his counsel in the civil cases earlier, it cannot be presumed that in criminal cases also he had changed his counsel. It was reiterated that they have been engaged recently in September, 2018 when fresh vakalatnama was filed in the case. She has also placed on record the medical certificate of the revisionist dated 26.09.2018 in support CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 7 of 14 of her arguments along with medical record (in CR No. 781/18) showing that the revisionist is suffering from diabetes for last many years.
13. Firstly, I shall deal with the application under Section 5 of the Limitation Act for condonation of delay of 20 days in filing the revision petition. Admittedly, the revision against the impugned order dated 11.07.2018 has been filed beyond the period of limitation of 90 days. The reason given in the application is that the counsel for revisionist was engaged on 25th September, 2018 and the earlier counsel did not provide the complete file, therefore, the counsel had to apply for certified copy of the complete file on 14th October, 2018 and the copy was received on 25th October, 2018 and, therefore, the present revision petition was filed on 29th October, 2018. Counsel for the respondent has disputed this fact and has placed reliance on the orders passed in the civil suits between the parties, copies of which have been placed on record to show that the same counsel was appearing for the revisionist in the civil suit and it cannot be said that he was not aware of the criminal cases and that he had also been engaged by the revisionist for criminal cases much prior to 26 th September, 2018, the date when the counsel filed vakalatnama before Ld. Trial Court.
14. I do not find any substance in the arguments advanced by counsel for the respondent. It is not necessary that a person may engage same counsel for all his cases and the possibility of engaging of different counsels for different cases by a person cannot be ruled out. It is a matter of choice of a person whether he engages one advocate for all his cases or different advocates CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 8 of 14 for different cases. Perusal of record shows that fresh vakalatnama was filed by the revisionist on 26.09.2018 before the Ld. Trial Court, hence, the submission of counsel for revisionist that she was engaged on 25 th September, 2018 appears to be correct and probable.
15. Law is well settled that provisions of Section 5 of Limitation Act have to be construed pragmatically and hyper technical approach should be avoided. The object of the procedural law is to advance the cause of substantial justice and not to cause hindrance in the same.
16. In view of the reasons given in the application, I am of the considered opinion that revisionist has shown sufficient cause for condonation of delay of 20 days. Accordingly, the application for condonation of delay is allowed and delay of 20 days is condoned subject to cost of Rs. 3,000/- to be paid to the complainant.
17. Now I shall deal with the impugned orders dated 11.07.2018 and 28.09.2018. Vide order dated 11.07.2018, Ld. Trial Court dismissed the application of revisionist under Section 311 Cr.P.C. for recalling complainant for his cross-examination. Counsel for the revisionist has argued that the revisionist was not given sufficient opportunity to cross-examine the witness and even on 28.06.2017 which was third opportunity to cross- examine the complainant, the revisionist had merely sought pass over but Ld. Trial Court did not record the request for pass over but closed the right of cross-examination of the accused. It was argued that notice in this case was framed on 9.11.2015 CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 9 of 14 and thereafter accused sought adjournment on 28.04.2016 as the main counsel was not available, therefore, another adjournment was sought on 23.02.2017 as the counsel was busy in High Court and adjournment was granted subject to cost of Rs. 1000/-. Thereafter, on 28.06.2017 right of the accused to cross-examine the complainant was closed. On the very next date, revisionist filed an application under Section 311 Cr.P.C. which was dismissed on 11.07.2018 noting that three effective opportunities were given to the revisionist to cross-examine the complainant but the same were not available for various reasons and without any justification. It was submitted that the cross- examination of the complainant is essential for just decision of the case and to prove the falsity of the case of the complainant and one opportunity was sought for cross-examination of the complainant.
18. Ld. Counsel for the respondent has vehemently opposed the revision petition and has submitted that revisionist has been adopting dilatory tactics to delay the disposal of the case. It was further argued that false aspersions were made against the counsel for the complainant and the court in the application under Section 311 Cr.P.C. The revisionist and his counsel seek adjournment on flimsy grounds and the application under Section 311 Cr.P.C. has been rightly dismissed by Ld. Trial Court.
19. The object of Section 311 Cr.P.C. is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society. The paramount requirement of criminal justice system is just and CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 10 of 14 fair decision and for that purpose it is necessary that there should not be failure of justice on account of mistake of either party, in bringing the valuable evidence on record. Grant of fair opportunity to the accused to prove innocence is the object of every fair trial. No doubt, in the present case the accused was given three opportunities to cross-examine the complainant but he failed to avail the same but the court also cannot ignore the fact that complainant is the most important witness in the case and cross-examination of the complainant is necessary to arrive at just and fair conclusion of the case. The submission made by the counsel for the respondent that in civil cases also revisionist has been delaying the matter and that Ld. Civil Judge had observed that revisionist had deliberately delayed the matter cannot be of much consequence in this case. Perusal of the orders passed in the civil suit show that the revisionist had already been penalized for his mischief as his right to file WS was filed and his defence was struck-off.
20. Hence, in the totality of the facts and circumstances, I am of the considered opinion that no prejudice will be caused to the respondent if revisionist is given one opportunity to cross- examine the complainant. Delay caused can always be compensated in terms of cost. Accordingly, the application under Section 311 Cr.P.C. is allowed, subject to cost of Rs. 10,000/-. It is made clear that revisionist is given only one opportunity to cross-examine the complainant and in case he fails to avail the opportunity, his right to cross-examine the complainant shall stand closed.
21. The revisionist has further impugned the order dated CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 11 of 14 28.09.2018 whereby the Ld. Trial Court had cancelled the NBWs of revisionist subject to cost of Rs. 10,000/- to be paid to the complainant. Counsel for revisionist has argued that the Ld. Trial Court failed to take into consideration, the fact that revisionist was present in the court on the first call on 26.09.2018 but due to sudden illness he had to leave the court and this fact was conveyed by Ld. Proxy counsel for the revisionist when the case was called again. It has been argued that revisionist is suffering from diabetes since 2010 and on 26.09.2018 all of a sudden he fell ill and had to leave the court. Revisionist has also filed medical certificate dated 26.09.2018 along with medical record (in CR No. 781/18) in support of her arguments and has submitted that the cost of Rs. 10,000/- imposed by Ld. MM for cancellation of NBW is exorbitant and excessive.
22. Ld. counsel for the respondent has argued that the Ld. Trial Court has rightly imposed the cost as revisionist is in the habit of adopting dilatory tactics and deliberately delays the disposal of the cases. He also made references to the orders passed by Ld. Civil Judge in the civil suits pending between the parties wherein Ld. Civil Judge had observed that revisionist had deliberately not filed the WS in time.
23. Perusal of the Ld. Trial Court record shows that since the accused first appeared on 22.08.2015 till 26.09.2018, the accused never absented himself nor sought any exemption. Perusal of the order sheet dated 26.09.2018 also shows that he was present in the court when the case was first called but had to leave the court due to sudden illness. Merely because Ld. Civil Judge in civil suits had given an observation that revisionist CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 12 of 14 had deliberately delayed the filing of WS, would not make much difference in this case. The revisionist has already been penalized by Ld. Civil Judge by closing his right to file WS and striking-off his defence. From the perusal of the Ld. Trial Court record, I am of the considered opinion that the cost imposed by Ld. Trial Court for cancellation of NBW is excessive, particularly in view of the fact that he was present on the first call on 26.09.2018. Had there been any intention to delay the matter, revisionist could have absented himself frequently or sought exemption which is not so. Hence, in the interest of justice order dated 28.09.2018 is modified and the cost for cancellation of NBWs is reduced to Rs. 2,000/-.
24. Conclusion In view of the foregoing discussion, the revision petition filed by the revisionist is allowed. The delay in filing of revision petition stands condoned subject to payment of cost of Rs. 3,000/- to the complainant.
The order dated 11.07.2018 passed by Ld. Trial Court is set aside and revisionist is granted one opportunity to cross- examine the complainant subject to payment of cost of Rs. 10,000/- to the complainant. The complainant shall appear before the Ld. Trial Court for cross-examination on the next date of hearing. It is made clear that in case the revisionist fails to pay the cost and cross-examine the complainant, his right to cross-examine the complainant shall stand closed.
The order dated 28.09.2018 is modified to the extent that the cost of Rs. 10,000/- for cancellation of NBWs imposed by CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 13 of 14 Ld. Trial Court is reduced to Rs. 2,000/- to be paid to the complainant.
The revision petition stands disposed of accordingly.
25. Trial court record be sent back forthwith along with copy of this order.
26. The file of revision petition be consigned to record room after due compliance. ANIL Digitally signed by ANIL KUMAR SISODIA Announced in the open Court KUMAR Date: 2018.12.10 On this 07thDecember, 2018 SISODIA 11:27:11 +0530 (ANIL KUMAR SISODIA) Special Judge (PC Act) (CBI)-04 Central Distt: Tis Hazari Courts: Delhi CR No. 782/2018 Vippy Kapoor Vs. Anand Automobiles DLCT01-014360-2018 Page 14 of 14