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HIGH COURT OF DELHI
Date of Decision: 25/11/2022
SH. ANAND JINDAL ..... Petitioner
Through: Ms. Jyoti Nambiar, Advocate.
Through: Respondent in person
SH. ANAND JINDAL ..... Petitioner
Through: Ms. Jyoti Nambiar, Advocate.
Through: Respondent in person
1.0 Vide these petitions, the petitioners have challenged order dated
26.03.2022 passed by Ld. Metropolitan Magistrate, North-West, Rohini, Delhi, in Ct. Case no. 16147/2016 (CRL.M.C. 2470/2022 and Ct. Case no. 17032/2016 (CRL.M.C. 2471/2022), whereby the petitioner’s right to lead defence evidence was closed (“impugned order’ in short).
2.0 It is submitted that the petitioner/accused has been diligently appearing in the matter. On 26.03.2022, the petitioner was bed-ridden and was unable to appear for his examination on that day. The Ld.
Magistrate failed to consider the same despite reasons for adjournment having been duly mentioned in the application for exemption.
2.1 Ld. counsel for the petitioner submits that the petitioner’s/accused’s right to lead evidence could not have been closed on the basis of past conduct, which is contrary to the law as laid down in
Srivastava vs. R.K. Raizada and Others, (2000) 3 SCC 54. It is submitted that even if adjournments were sought by the petitioner in the past, same were already allowed by the Ld. Magistrate; and therefore, same could not have been taken into account while closing the petitioner’s right to lead defence evidence. More so, as the petitioner had already filed an application under section 315 Cr.PC along with the list of witnesses, which was allowed by the Ld. Magistrate vide order dated
24.08.2018. The said list included one Arun Jain, material witness, who was also yet to be examined.
2.2 Ld. counsel for the petitioner further submits that recently this court vide its order dated 19.05.2022 has allowed a similar petition, whereby the order of the Ld. ARC closing the right to lead evidence on the ground of previous conduct was set aside.
3.0 On the other hand, this petition is strongly opposed by the respondent no. 2, who argued in person. Respondent no. 2 submits that the Ld. counsel for the petitioner/accused/DW1 made a submission before the Ld. Magistrate on 26.03.2022 that DW1 is on his death bed and therefore, unable to appear. But the said averment was not supported by any medical document.
3.1 The respondent no. 2 points out that the petitioner’s affidavit dated
21.05.2022 filed along with the present petition shows the petitioner’s address as that of Kapil Vihar and the affidavit filed along with the petition was got attested at Saket; Saket is at a distance of about 30 kms from the place of the petitioner’s residence. He also argued that if the petitioner was/is on death bed, how could he travel such a long distance.
It is argued that the same shows that the averments made on behalf of the petitioner before the Ld. Trial Court were false. Thus, taking the same into account and also the petitioner’s previous conduct, the petitioner’s right to lead defence evidence was rightly closed.
3.2 Respondent no. 2 further submits that the medical documents filed along with this petition show that the petitioner is taking treatment from a doctor at Lucknow. It is unbelievable that a person, who is living in
Delhi, would go for treatment to Lucknow. Same reflects on the authenticity of the medical record filed by the petitioner.
3.3 Respondent no. 2 also submits that from the affidavit filed along with this petition, he has come to know the actual address of the petitioner is 101, IInd Floor, Kapil Vihar, Pitampura, New Delhi.
Whereas he has given another address before the Ld. Trial Court. The petitioner never disclosed change in his address before the Ld. MM. He also submits that the fact that the petitioner had changed his address was revealed only when the respondent accompanied the bailiff to execute warrants of attachment issued with respect to the said property.
4.0 I have duly considered the submissions made by both the parties.
5.0 Perusal of record shows that the complaint u/S. 138 N.I. Act was filed by the respondent for dishonour of cheque of Rs.1,90,000/-, which was placed before Ld. MM on 03.02.2015. After recording of pre- summoning evidence, the petitioner herein was summoned for
01.06.2015. On 01.06.2015, an advocate had appeared on behalf of the accused/petitioner and had filed an application for exemption from personal appearance on the ground of ill health, which was allowed for that day; the matter was adjourned to 16.07.2015 for appearance of the petitioner/accused for furnishing bail-bond, consideration of notice, etc.
The petitioner had appeared on 16.07.2015. However again, on the next date of hearing i.e. 11.09.2015, an application for exemption from personal appearance was filed by the petitioner which was allowed adjourning the matter to 24.11.2015. Subsequently, in view of amendment in the N.I. Act there was a change in jurisdiction and the matter was then transferred. Subsequently, summons were issued to the petitioner vide order dated 19.12.2015 for 11.04.2016. On 11.04.2016, the summon was received back unserved with the report “Shifted”. The order of the said date records submission of the respondent herein that the petitioner is very much residing at the given address and is deliberately avoiding service. Taking on record the said submission, the
Ld. Magistrate had issued bailable warrants against the petitioner herein returnable on 17.05.2016.
5.1 Record shows that pursuant thereto, the petitioner appeared before the Ld. Magistrate on 17.05.2016 and notice was framed against him allowing time as sought by the petitioner, for moving application u/S.
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145 N.I. Act, adjourning the matter to 09.09.2016. Thereafter, the matter was adjourned to 12.12.2016, which was declared a holiday and the matter was adjourned to 10.03.2017. Ld. Presiding Officer not being available on that date, the matter was adjourned to 19.05.2017, on which date it was adjourned to 22.09.2017 at request of the parties. 5.2 Vide order dated 22.09.2017, the petitioner was granted an opportunity to cross-examine the complainant, listing the matter for the complainant’s/respondent’s evidence on 25.01.2018; on which date, the respondent was examined, cross-examined and discharged and the matter was adjourned to 20.04.2018 for recording of statement of the accused u/S. 218 Cr.PC r/w. 313 Cr.PC. On 20.04.2018, the statement of the petitioner/accused was recorded and as the petitioner/accused chose to lead evidence, vide order dated 20.04.2018, the matter was listed for the petitioner’s/defence evidence on 24.08.2018. On the next date of hearing i.e. 24.08.2018, the petitioner was absent and an exemption application was filed on behalf of the petitioner/accused, which was strongly opposed. However, the same was allowed by the Ld. MM for that day listing the matter for defence evidence on 05.12.2018. On 05.12.2018, as the Ld. Magistrate was on leave and the matter was adjourned to 18.04.2019. 5.3 Record shows that on 18.04.2019, fresh Vakalatnama was filed on behalf of petitioner/accused and again an exemption application was filed on behalf of the petitioner/accused on medical grounds, which was allowed, subject to furnishing of proper medical certificate and the matter was adjourned to 13.08.2019 for the petitioner’s defence evidence. 5.4 It seems that as the Ld. MM was on leave on 13.08.2019, matter was adjourned to 13.01.2020, on which day, the petitioner/accused was examined and his cross-examination was deferred at the request of Ld. counsel for the respondent/complainant for want of certain documents to 21.04.2020. 5.5 Record shows that on account of COVID-19 pandemic, on 21.04.2020 and thereafter, the matter was continued to be adjourned en bloc. On 23.01.2021, when the matter was taken up for hearing, the petitioner/accused was absent and again an exemption application was filed on his behalf, which was allowed for that day. Relevant portion of the said order reads as under : “23.01.2021 ..................... Present : Complainant in person through physical hearing. Sh.Ankit Miglani, Ld. counsel for accused through physical hearing. Accused absent. An exemption application is moved on behalf of accused. Heard. Allowed for today only. Perusal of record shows that matter is pending for cross-examination of DW-1 is pending, however, accused has not appeared today. In the interest of justice one more opportunity is being granted to the accused for cross-examination. Put up for DE on 24.04.2021. s/d-” 5.6 It appears that the matter was again adjourned from time to time on account of COVID-19 pandemic (second wave) and was taken up for hearing 09.11.2021. As none appeared in the matter on 09.11.2021, the matter was adjourned to 26.03.2022. 5.7 Record further shows that on 26.03.2022 again, adjournment was sought by Ld. counsel for the petitioner which led to passing of the impugned order, which reads as under : “26.03.2022 This court has a pendency of more than 6900 cases including 6200 private party cases with more cases being transferred from the Court of Ld. ACMM and Ld. CMM, North West District. Today 74 regular cases are listed. Present: Ld. Counsel for complainant. Ld. Proxy Counsel for accused. Accused absent. It is submitted by Ld. counsel for accused that DW1 is on his death bed and therefore not able to appear before this court. Submissions heard. Considering the previous conduct of the accused and keeping in view that matter is pending for DE since 2018, right to lead DE stands closed. Put up for final arguments on 28.04.2022 at 2:30 pm. s/d-...............” 6.0 Admittedly, no medical record was filed along with the application for exemption from personal appearance filed on behalf of the petitioner/accused on 26.03.2022. 7.0 From the above, it is evident that the matter was fixed for petitioner’s/defence evidence on 24.08.2018, when the exemption was filed on behalf of the petitioner. Thereafter, on 18.04.2019, a new counsel appeared on behalf of the petitioner/accused and again adjournment was sought on medical grounds, which again was allowed subject to filing of proper medical certificate. There is nothing on record to show that such documents were filed by the petitioner. 7.1 As already noted above, the petitioner/accused was first examined on 13.01.2020 when his cross-examination was deferred at the respondent’s request. When the matter was taken up again on 23.01.2021, again an exemption application filed, which was allowed. Subsequently, two years passed by during COVID-19 pandemic. On the last date of hearing i.e. 26.03.2022, the petitioner again sought adjournment on medical ground, admittedly, without filing any medical documents in support. In view of which, the Ld. Magistrate closed the petitioner’s right to lead defence evidence. Ld. counsel for the petitioner/accused submits that she has now annexed the medical documents along with this petition and has drawn attention of this court to medical certificate issued by Dr. A.K. Sharma, of Samvedana, Super Specialty Hospital, Lucknow, which shows that the petitioner is a known case of kidney ailment and undergoes dialysis on regular basis. 8.0 Ld. counsel for the petitioner now submits that as per list of witnesses, the petitioner had also sought to produce another witness Arun Jain, but without appreciating the same, Ld. MM closed the petitioner’s defence evidence. The petitioner be allowed to at least examine his material witness Arun Jain. 9.0 From the above, it is evident that the petitioner’s defence evidence started in August 2018 and could not be concluded on account of adjournments sought by the petitioner/accused from time to time. Ld. counsel for the petitioner has pleaded that petitioner is suffering from kidney ailments and has to undergo dialysis. The petitioner had not been diligent in placing on record the requisite medical documents in support. Further, nothing prevented the petitioner from producing the other defence witness on the date fixed, if he himself was unable to appear. 10.0 At this stage, learned counsel for the petitioner submits that she has instructions to state that the petitioner, due to ill health would not be able to appear for cross examination. Therefore, she is seeking relief only to the extent of permitting the petitioner to produce only the other defence witness i.e., Arun Jain. 10.1 Considering the above facts and circumstances and taking into account the petitioner’s undertaking not to seek any further adjournment and that such leading of the defence evidence by the petitioner may only assist the Ld. Trial Court to arrive at just decision, in the interest of justice one opportunity is given to the petitioner, subject to cost of Rs.5,000/- to be paid to the respondent/complainant. The petitioner shall conclude his/defence evidence on the date so fixed by the Ld. Trial Court for the purpose. No adjournment shall be sought by the petitioner. 11.0 Learned counsel for the petitioner now submits that she has received instructions from the petitioner that the petitioner is ready to explore possibility of settlement through mediation. 12.0 In view of the above, the parties are referred to Delhi High Court Mediation and Conciliation Centre for 30.11.2022 at 3 pm. 13.0 Mediation Report be sent to the learned Trial Court. 14.0 The petitions are disposed of accordingly. (POONAM A. BAMBA) JUDGE NOVEMBER 25, 2022 Click here to check corrigendum, if any
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