ANIL KUMAR JAGGI vs THE STATE & ANR.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 26.05.2023
% Pronounced on : 29.11.2023
+ CRL.M.C. 3925/2023
ANIL KUMAR JAGGI ….. Petitioner
Through: Mr. Davinder N. Grover and Mr. Ravi Diwakar, Advocates along with petitioner in person.
versus
THE STATE & ANR. ….. Respondents
Through: Mr. Naresh Kumar Chahar, APP for the State.
CORAM:
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
CRL.M.A. 14790/2023 (exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CRL.M.C. 3925/2023 & CRL.M.A. 14789/2023 (stay)
3. The present petition has been filed under Section 482 Cr.P.C. by the petitioner for setting aside the order dated 03.03.2022 passed by the learned MM-01 (NI Act), West District, Tis Hazari Courts, Delhi in CC NO. 8540/16 whereby the application filed under Section 311 Cr.P.C. for recalling the complainant (respondent no. 2 herein) for further cross-examination was dismissed.
4. At the outset, it is submitted by learned counsel for the petitioner that the complainant filed a complaint under Section 138 NI Act in the Court of ACMM, Saket District Court, thereafter the petitioner moved an application under Section 145 (2) NI Act to record the evidence and cross-examination of the respondent no. 2. It is submitted by learned counsel for the petitioner that respondent had led his evidence by way of an affidavit and was partly cross-examined and the further cross examination was deferred as certain documents were to be brought on record by the complainant. It is further submitted that the petitioners rights to cross-examine the respondent was closed as his counsel was not available. It is further submitted that the reason for not cross-examining the respondent on 12.07.2019 was mainly due to absence of the petitioners counsel.
5. It is further submitted that thereafter the petitioner engaged a new counsel and consequently, vide order dated 12.07.2019, learned MM closed the rights of the petitioner to cross-examine respondent no.2. It is further submitted that the petitioner filed an application under Section 311 Cr.P.C. for recalling of the respondent no. 2 for further cross-examination but the said application was dismissed as the learned MM was of the view that change of counsel is not a ground. It is further submitted that the newly engaged counsel failed to appear in the court on both dates, but the petitioner himself had appeared before the Court despite having health issues, therefore, the petitioner could not be penalised for the fault of his counsel.
6. It is further contended by learned counsel for the petitioner that respondent no. 2 is primary and the most important witness of this case, therefore, his cross-examination is essential for a fair trial. It is further contended that change of a counsel is not a ground to dismiss the application of recalling of a witness as the aim of the trial is that no innocent person should be punished. It is further contended that it is a settled law that for a just and fair trial, witnesses can be recalled at any stage.
7. In support of his arguments, learned counsel for the petitioner has relied upon the following judgments:-
* P Sanjeeva Rao v. State of A. P. & Anr. 2012 SC 2242;
* Iddar & Ors. v. Abida and Anr. AIR 2007 SC 3029;
* U. T. Dadra & Nagar Haveli v. Fatehsinh Mohansinh 2006 (7) SCC 529;
8. In the instant case, for proper adjudication, it is necessary to look into the impugned order dated 03.03.2022. The relevant portion of the impugned order reads as follows:
xxxxxxxxxxxx. However, accused did not appear on 02.02.2016. NBW was issued against the accused. Then on 08.08.2016 last and final opportunity was given to the accused to cross examine the complainant failing which the opportunity should be closed on NDOH. Then again on 15.11.2016, last and final opportunity was granted to the accused to cross examine the complainant also his opportunity should be closed on NDOH. Then on 27.02.2017 last and final opportunity was granted to the accused to cross examine the complainant subject to the cost of Rs. 3000/-to be paid to the complainant on NDOH. On 27.06.2017, CW-1 examined and partly cross examined. Further cross-examination deferred. Then on 24.1.2017, accused submitted that his counsel was not available and matter is again listed for cross- examination. Then on 29.10.2018, it was made clear to the accused that in case of failure of the accused to cross-examine the complainant on NDOH. his right to cross- examine the complainant should be closed. Then on 17.09.2018, last and final opportunity was granted to the accused to cross examine the complainant subject to the further cost of Rs.3000/- to be pald to the complainant on NDOH. Then on 13.05.2019, again last and final opportunity was granted to the accused to cross-examined the complainant subject to the further cost of Rs. 5000/- to be paid to the complainant on NDOH. Right of the accused to cross-examine the complainant was closed on 12.07.2019.
It is well settled law that change of counsel is not the ground to recall the witness. Further, It is pertinent to mention that case is pending since 2013. Perusal of the record shows that multiple opportunities have been given to the accused to cross- examine the complainant but the accused deliberately did not choose to cross-examine the complainant nor paid the cost. Now, at this stage, if the application u/s 311 CRP.C be allowed then there will be no finality of the case.
In view of the aforesaid observations, application u/s 311 CrP.C moved on behalf of the accused stands dismissed. Since, the accused is a senior citizen, no cost is imposed.
9. A bare perusal of the impugned order dated 03.03.2022 reveals that the cross-examination of respondent no. 2 began way back in 2014 and despite numerous final opportunities being given to the petitioner, the cross examination wasnt completed till 13.05.2019, thus vide order 12.07.2019, the right to cross-examine the petitioner was closed by the learned MM.
10. It is pertinent to mention here that the accused engaged a new counsel in February, 2018 and the accused had approximately 15 months to complete the cross examination, however, in this period no progress was made whatsoever, which is nothing but to harass the respondent no. 2 and delay the trial.
11. As far as powers under Section 311 Cr.P.C. are concerned, there is no dispute to the proposition of law, however, the witness is to be called for further examination or for cross examination depends upon the facts of each case. A perusal of the impugned order reveals that matter is pending since 2013 and was listed for cross examination of the complainant on 11.07.2014 and on 12.12.2014, thereafter again the matter was listed for cross examination of the complainant but the petitioner did not appear on 02.02.2016 and the NBWs were issued against him. On 08.08.2016, last and final opportunity was granted to the petitioner to cross-examine the complainant, then again on 15.11.2016, in the interest of justice, last and final opportunity was granted to the petitioner to cross examine the complainant then again on 27.02.2017, one more last and final opportunity was granted to the petitioner to cross examine the complainant subject to cost of Rs. 3,000/- on the petitioner. It was only on 27.06.2017, the complainant was partly cross examined and further cross examination was deferred. On 24.01.2017, the petitioner submitted that his counsel was not available and the matter was again adjourned for cross examination. Thereafter, on 29.10.2018, it was made clear to the petitioner that in case of his failure to cross-examine the complainant his rights to cross examine the complainant would be close. The order dated 17.09.2018 reveals that on the said date again a last and final opportunity was granted to the petitioner to cross examine the complainant and a cost of Rs. 3,000/- was further imposed upon the petitioner. On 13.05.2019, again last and final opportunity was granted to the petitioner to cross examine the complainant subject to further cost of Rs. 5,000/- to be paid by the paid by the petitioner to the complainant.
12. Having been given numerous final opportunities to the petitioner for cross examine the complainant, learned Magistrate had no other option, so the cross-examination of the complainant was ultimately closed on 12.07.2019. The case is a very old case which pertains to the year 2013. It has been mainly argued that newly engaged counsel did not perform his duties but there is nothing on record to show that the petitioner has taken any action by filing any complaint against the newly engaged counsel and it is also pertinent to mention here that the old counsel and the newly engaged counsel were both engaged by the petitioner out of his own free will and choice. So, the petitioner cannot be heard to say that his counsel has faulted because of which he is suffering.
13. In view of the above, I find no infirmity in the impugned order. The intention in invoking the provisions of Section 311 Cr.P.C. is to further the cause of justice. But in the present case at hand, the intention of the petitioner certainly appears to abuse the process of law. Moreover, taking into consideration the peculiar facts and circumstances of this case only, the change of counsel, in my opinion, is no ground for recalling the complainant for his further cross-examination and this ground however in my opinion is nothing but a ploy to delay the trial which is directly connected to the fact that justice delayed is justice denied.
14. Therefore, keeping in view the aforesaid observations, the impugned order dated 03.03.2022 does not call any interference from this Court, therefore, the present petition along with pending application, if any, stands dismissed.
RAJNISH BHATNAGAR, J
NOVEMBER 29, 2023/p
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