Rohit Kapoor v. M/S Kavi Impex & Anr.

1. Petitioner impugns judgment dated 31.01.2018 of the Revisional Court rejecting the Revision Petition of the petitioner impugning order dated 18.08.2017 of the Trial Court dismissing the application of the petitioner under Section 311 of the Code of Criminal Procedure (Cr.P.C.) seeking recall of the complainant for cross-examination.

2. Notice was directed to be issued on the respondents. As per the Office Report, notice has been served. 2018:DHC:3200

3. Learned counsel for the petitioner submits that he received telephonic call from Mr Amit Tayal, Advocate, who appears for the complainant in the Trial Court that he would not be in a position to appear.

4. There is no representation on behalf of the respondent No.1. Neither his counsel nor authorized represented the respondent No.1 is present despite service.

5. Learned counsel for the petitioner submits that subject proceedings emanate out of complaint under Section 138 of the Negotiable Instruments Act, 1881, which is listed on 28.05.2018 for defence evidence.

6. Learned counsel for the petitioner further submits that the petitioner could not cross-examine the complainant. He submits that the petitioner had instructed his earlier counsel to appear and diligently defend the complaint, however, counsel failed to crossexamine the witness and even failed to inform the petitioner that he was not able to cross-examine the said witness. He prays that one opportunity be given to the petitioner to cross-examine the complainant.

7. Keeping in view the facts and circumstances of the case, I am of the view that one opportunity be given to the petitioner, subject to terms.

8. Accordingly, petitioner is granted one opportunity to crossexamine the complainant subject to payment of costs of Rs.15,000/- to be paid to the respondent.

9. Since the matter is listed on 28.05.2018, it would be the discretion of the Trial Court to either permit the petitioner to crossexamine the complainant on 28.05.2018 or fix a date for crossexamination of the complainant.

10. Both the petitioner as well as the complainant shall be ready for the said purpose on 28.05.2018.

11. The petition is accordingly allowed in the above terms.

12. Order Dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J MAY 15, 2018 ‘Sn’