Delhi District Court
Smt. Satyabhama Saini vs Smt. Beena Jain on 13 December, 2018
1
IN THE COURT OF SH.NARINDER KUMAR:ADDITIONAL
SESSIONS JUDGE:(CENTRAL DISTRICT):TIS HAZARI
COURT:DELHI
Crl. Rev. No. 867/2018
Date of institution: 06.12.2018 Decided on:13.12.2018
In the matter of :
Smt. Satyabhama Saini .....Petitioner
Versus
Smt. Beena Jain .....Respondent
JUDGMENT
Petitioner herein is complainant in Complaint Case No.529483/16 under Section 138 of Negotiable Instruments Act. Respondent is accused in the said criminal case.
Complainant is feeling aggrieved by order dated 22.10.2018 vide which Learned Trial Court has dismissed his application under Section 311 CrPC.
22. Application under Section 311 CrPC came to be filed on 14.08.2014 with prayer that following witnesses be allowed to be summoned:
a) Vinod Kumar R/o Ram Garh Shekhwati, District Sikar, Rajasthan.
b) Mohd. Farhad, Tenant of shop of complainant situated at ground floor of 3149, Gali No. 3149, Bahadurgarh Road, Delhi110006.
c) Manoj Kumar, Tenant of shop of the complainant situated at ground floor of 3149 Gali No. 3149, Bahadurgarh Road, Delhi110006.
d) Bankers of the accused and
complainant, details given in the
complainant case.
Learned counsel submits that he does not press application so far as last mentioned witness is concerned.
3. Learned Counsel for petitioner submits that application came to be filed subsequently, after the cross examined on behalf of the accused on the point of source of money. Since the evidence on the point of source of money is necessary, learned Metropolitan Magistrate should have allowed 3 the application.
Learned counsel for petitioner also pointed out that the accused took sufficient time in crossexamining the complainant and actually complaint got delayed because of delaying tactics adopted by the accused.
4. On the other hand, learned counsel for accused respondent submits that complainant was required to lead evidence on the point of source of income in the very beginning, as in such like cases accused respondent is to rebut to the statutory presumption under the Act. Further it has been submitted that at the time complainant was examined, no such evidence was led by him.
It has been submitted that when it cannot be said that evidence regarding source of money was not within the knowledge of the complainant, he should have taken steps and with all diligence filed application at the earliest, but the same has been filed when the case is pending for defence evidence.
45. Another argument raised by learned counsel for accused - respondent is that petition is not maintainable, in view of decision in Sethuraman v. Rajanickam 2009 Law Suit (SC) 417, Anil Kumar v. Sunita & Ors. 2013 Law Suit (Del) 662 and Naranga Ram v. State of Haryana & Anr. CRM no. M 2656 of 2015 decided on 14.12.2017.
6. In Sethuraman's case (supra), Hon'ble Apex Court has held that the order on application under Section 311 CrPC for recalling of witness is an order of interlocutory nature, in which case, revision is not maintainable under Section 397 (2) CrPC.
As noticed above, vide impugned order, Learned Metropolitan Magistrate has disposed of the application under Section 311 CrPC filed by the complainant. In view of decision in Sethuraman's case (supra), the impugned order is an interlocutory nature and as such present revision petition is not maintainable.
Even otherwise, in suchlike complaint cases, complainant opens case by leading evidence and it is thereafter 5 that the accused is examined as to the incriminating material which appears in evidence against him and then the accused leads his defence evidence. Herein, when the complainant was last of all crossexamined on 24.09.2018, in continuation of statement recorded on 07.06.2017, he denied the suggestion that he was not having cash to the tune of Rs.3 lacs and his financial condition was so poor that he could not arrange Rs. 3 lacs.
In case the complainant was to lead any evidence regarding any source of income, he should have led the same at the appropriate time while the case was pending for his evidence.
Evidence of the complainant was closed on 25.11.2013.
Learned counsel for complainant submits that complainant never closed the evidence and the same was closed by the Court.
7. Order dated 25.11.2013 was passed in presence of the complainant and her counsel. She never objected to the 6 closing of the evidence. Even thereafter no application was filed by her for reopening of the evidence on the averment that such and such evidence was to be led. Present application came to be filed on 01.10.2018. There is no explanation as to why such a prayer was not made at the earliest. Even otherwise, no relevancy of the statements of Vinod Kumar & other two witnesses has been mentioned in the application.
In the given situation, the revision petition is hereby dismissed.
8. Parties to appear before the Learned Trial Court on 15.12.2018.
9. Trial Court Record be returned with copy of Judgment. File of revision petition be consigned to record room.
Announced in the open Court
on this 13th day of December 2018
Digitally signed by
NARINDER NARINDER KUMAR
KUMAR Date: 2018.12.14
15:16:03 +0530
(Narinder Kumar)
Additional Sessions Judge (Central) Tis Hazari Court:Delhi