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Fantasy Fashion v/s Asim Kumar Sinha

    CRL.M.C. 4316 OF 2011

    Decided On, 17 May 2012

    At, High Court of Delhi


    For the Petitioner: Ajay Vikram Singh, Advocate. For the Respondents: Counsel for the respondent (Appearance not given)

Judgment Text



1. The petitioner, who is an accused in Complaint Case no.1541/1 of 2005 under Section 138 Negotiable Instrument Act, has impugned the order dated 10.10.2011 passed in Criminal Revision No.202/2011.

2. Vide impugned order, learned ASJ, I/C Saket Courts, after considering the grounds on which the petitioner/accused wanted to recall CW-1 - the complainant for further cross examination, affirmed the order dated 29.07.2011 passed by learned Metropolitan Magistrate. The prayer to further cross examine CW-1 was declined for the reasons given in para 8 and 11 of the impugned order which are extracted as under :-

'8. Recall of CW-1 was prayed by the accused on the ground that the accused wanted to confront him with certain documents which had come on record subsequent to his cross-examination which were not available earlier. He referred, in this context, to the ledger account of Sunil Garments as produced by DW-3 which contains details of payments by another firm namely M/s Sahani Brothers. DW-3 Vipin Gupta is actually Accounts Incharge of M/Section Sahani Brothers, a firm distinct from that of the two parties herein. During his statement, the witness was called upon to produce and prove certain documents in the nature of bills raised by the two firms of the accused and the complainant in respect of payments made to M/s Sunil Garments by M/s Sahani Brothers. The documents that were taken on record included letter dated 18.03.2005 marked as Mark 'X' and computer generated bills mark DW3/S. Interestingly, the witness stated even his examination in chief that he would not know whether proprietors of the firms of the complainant and the accused used to work together from M/s Sahani Brothers or not.

11. The complainant is not the author of the documents in question. He cannot be called upon to explain the said documents. Even otherwise, the documents have not been strictly proved on record. The defence theory now sought to be taken was never the case of the accused during the earlier cross-examination. Apparently, the accused wants to drag on with the proceedings. The opportunity having been granted earlier being sufficient, no good grounds have been shown to permit recall under Section 311 Cr.P.C.'

3. Learned counsel for the petitioner has submitted that the documents proved by DW-3 were to be confronted to CW-1 – the complainant during cross examination which could not be done earlier as these documents were not in possession of the petitioner during the period the complainant was examined. The same can be confronted now as the documents have been brought on record by DW-3. The same are required to be put to the complainant for the just decision of the case, hence learned MM as well learned ASJ, I/C Saket Courts committed a grave error in dismissing his application under Sec.311 CrPC. Learned counsel for the petitioner has relied upon Vikas vs. Moreshwar in Crl.W.P. No.1086 of 2009 decided on 25.06.2010; Subhash Chand Barjatya vs. The State and Anr. in Crl.Rev.P. No.450/2006 decided on 06.07.2006 and Mohan Lal Shamji Soni vs. Union of India and Anr. AIR 1991 SC 1346, in support of his contentions.

4. On behalf of respondent, it has been submitted that the case is fixed for final arguments. The complainant was cross examined at length and thereafter defence evidence was led and closed. The documents sought to be confronted pertain to third party and the purpose of filing this petition is only to delay the trial. The complaint is under Section 138 Negotiable Instrument Act, which was filed on 16.07.2005, is a summary trial but pending for almost seven years.

5. I have considered the rival contentions and also gone through the case law cited by learned counsel for the petitioner. In the case Vikas vs. Moreshwar (Supra), in para 13 it was observed as under :-

'13. Hence, resultantly, the principles of natural justice require that the complainant/respondent be recalled for his cross-examination to enable the petitioner herein to avail the opportunity to put the questions to him which remained to be asked inadvertently in the earlier cross examination in respect of the documents produced by the complainant on record, to enable the petitioner herein to put forth his defence before the Court, but such cross examination shall be restricted to the extent of documents produced by the complainant on record and, not beyond that.'

Since it is not the case of the petitioner that complainant produced certain documents in respect of which he has been denied opportunity to put forth as defence, he cannot derive any benefit out of it.

6. Case Subhash Chand Barjatya vs. The State and Anr.(Supra) also does not advance the case of the petitioner as in that case, the two applications of the petitioner i.e. under Section 91 CrPC and under Section 311 CrPC were allowed for the reason recorded in para 11 which is extracted as under :-

11. ……….When CW1 was examined and cross examined, this document (CW2/D2) was not within the knowledge of the petitioner and obviously no question could have been put by the petitioner to the CW1 with regard to the endorsement on the reserve. Therefore, I am not in agreement with the conclusion of the learned Metropolitan Magistrate that no purpose would be served by recalling CW1 for the purpose of confronting Exhibit CW2/D2.'

It is the case of the petitioner that the petitioner and respondent were initially partners in the firm Fantasy Fashion. Further as per petitioner, on 18.03.2005 respondent requested M/s Sawhney Brothers that the amount due to Fantasy Fashion be paid in the name of Sunil Garments. DW-3 Mr.Vipin Gupta, Accounts Incharge has produced the ledger of M/s Sawhney Brothers in respect of payment on different dates for job work done by Fantasy Fashion and payment made to Sunil Garments owned by the respondent. So there is no question of the petitioner now seeking further cross examination of CW-1 claiming that he was not in the knowledge of these documents or the same were not in his possession. The cross examination of the petitioner reveals that during entire cross examination, complainant has been confronted with various documents.

7. The ratio of the report Mohan Lal Shamji Soni vs. Union of India and Anr. (Supra) is laid down in para 30, which is extracted as under :-

‘30. The views expressed in the above judgments of the various High Courts have been approved by this Court in Rameshwar Dayal's case. We are in full agreement with the above view of Fazal Ali, J and hold that whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him.'

The case of the petitioner is not covered by the ratio of this case.

8. In the impugned order learned ASJ, I/C Saket Courts has noted that in reply to the notice under Section 251 CrPC, accused would simply plead not guilty without elaborating the defence he has to make. During the cross examination of the complainant also, the defence taken was that no amount was outstanding against the accused and the complainant had misused the cheques in question. During the entire lengthy cross examination of the complainant, no reference was made of any transaction involving M/s Sawhney Brothers.

9. Request of the petitioner to recall the complainant for further cross examination to confront him with the statement of account/ledger of M/s Sawhney Brothers has rightly been declined for the reason that complainant is not the author of the documents in question so as to call upon him to explain the same and otherwise also these documents were required to be proved by the defence witness. In the order passed by learned MM, it has been observed that the documents filed by DW-3 have not been exhibited as the said documents were computer generated copies and admissibility of documents was challenged by learned counsel for the complainant at the stage of examination of the said witness (DW-3). The documents have not been duly exhibited and tendered in evidence and were not admissible in evidence and therefore, could not be read in evidence. In view of the position in respect of the documents now sought to be confronted to the complainant, the petitioner cannot be permitted to make it an endless trial by putting the documents to the complainant which were sought to be proved during defence evidence.

10. The powers of this Court to be exercised under Section 482 CrPC can be mentioned in the words of Supreme Court in the case Jeffrey J. Diermeier and Anr. vs. State of West Bengal and Anr. (2010) 6 SCC 243, wherein in para 20, it was held thus :-

'20. ……The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. Neverthless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.'

11. The complaint case is pending for almost 7 years and it is observed that the purpose of filing the application under Section 311 CrPC before learned MM, then impugning the order before learned ASJ, I/C Saket Courts and now before this Court is only with a view to delay the disposal of the case. Such a tendency needs to be curled as observed by the Apex Court in para 15 of the report Santosh De & Anr. vs. Archna Guha & Ors. (1994) 2 SCC 420, which is extracted hereunder:-

15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades toge

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ther, if he has the means to do so. Any and every single interlocutory order is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 CrPC. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system.' 12. In view of above discussion, finding no merits in the petition, the same is hereby dismissed.