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2007 DAILYLAW 2314 (DEL)

PRAMOD BAJAJ v. G. D. L. LEASING FINANCE LTD.

2007-09-17

V B Gupta

body2007
V. B. GUPTA, J. ( 1 ) PRESENT petition under Section 482 Cr. P. C. filed by the petitioner seeks quashing of order dated 4th December, 2006 passed by Sh. Lokesh Kumar Sharma, m. M. and order dated 12th April, 2007 passed by Smt. Asha Menon, Addl. Sessions judge in the criminal revision and praying that application of the petitioner under Section 311 Cr. P. C. and under Section 73 of Indian Evidence Act may be allowed. ( 2 ) IT has been contended by learned counsel for the petitioner that on 15th April, 2006, the counsel for the petitioner could not conduct the cross examination due to his illness and in spite of illness, counsel for the petitioner appeared before the trial court but the team of striking lawyers did not allow him to make the cross-examination and forcibly took him into the bar room. Hence the cross examination of the CW-1 could not be conducted. ( 3 ) IT is stated that the orders passed by the trial court and addl. Sessions Judge are highly unjustified and improper and in the event if cross-examination of CW-1 is not conducted properly, it would be highly unjustifiable for the petitioner. ( 4 ) IN application under Section 311 Cr. P. C. filed on behalf of the petitioner before the trial court, it has been stated that on 15th April, 2006 the counsel for the accused could not come to the court due to illness since he was suffering from critical disease of blood clotting on his brain and the accused under compelling circumstances did the cross-examination of the witnesses. So, it was prayed that the present petitioner be permitted to further cross-examine the CW-1. ( 5 ) THE learned Magistrate vide order dated 4th December, 2006 dismissed the applications filed by the present petitioner holding that: "admittedly the cross examination of CW-1 was conducted by the accused himself in person on 15. 4. 06 and perusal of the judicial orders sheet reveals that the same was conducted by him in the presence of his counsel. Further no medical certificate of the counsel Sh. O. P. Aggarwal has been placed on record besides his own affidavit. 4. 06 and perusal of the judicial orders sheet reveals that the same was conducted by him in the presence of his counsel. Further no medical certificate of the counsel Sh. O. P. Aggarwal has been placed on record besides his own affidavit. However, no such request for an adjournment for the purpose of cross-examination was made on behalf of the accused or by his appearing counsel on 15th April, 2006 when case was listed for cross-examination of the complainant and the present application was filed only on 30th May, 2006. Further the applicant/accused has miserably failed to point out those relevant factual question which remained unasked to CW-1 on the said date. " With these observations the learned Magistrate dismissed the application under section 311 Cr. P. C. ( 6 ) AS far as application under Section 73 of the Evidence Act is concerned, the learned Magistrate held in his order that:- "since the signatures on the cheque have been admitted by the accused to be his own, hence I do not deem it fit that interest of justice shall be served if the accused is permitted to get the cheques examined by hand writing experts. So far as the remaining contentions are concerned same could be proved by him by calling the person concerned who is stated to be the author of the cheques. " ( 7 ) IN the revision filed by the present petitioner, learned Addl. Sessions judge observed as follows: "be that as it may, even on merits I do not find any ground to interfere with the orders of the Ld. Trial Court dated 4. 12. 06. In the ground of revision it is mentioned that on 15. 4. 06 as the lawyers were on strike, the counsel for the present petitioner who was present in the Court was forcibly dragged out from the Court by a group of lawyers and despite this incident the Ld. Trial Court had compelled the accused to cross examine CW-1. However, in the application u/s 311 Cr. P. C. filed for recalling CW-1 for further cross-examine in Para 2 it is stated that on 15. 4. 06 the counsel of the accused could not come to the Court due to his illness and the counsel for the accused was suffering from a "a critical disease of blood clotting on his brain" (SIC ). P. C. filed for recalling CW-1 for further cross-examine in Para 2 it is stated that on 15. 4. 06 the counsel of the accused could not come to the Court due to his illness and the counsel for the accused was suffering from a "a critical disease of blood clotting on his brain" (SIC ). It is also stated in this para that on 15. 4. 06, the counsel for the accused was not able to come to the Court due to severe head ache and heavy vomiting. The application U/s 311 cr. P. C. is supported by the affidavit of Sh. O. P. Aggarwal, advocate. The contradictions in the stand taken by the Ld. Cousnel for the accused/revision petitioner nails the lie. Either Ld. Counsel was not present due to illness before the Ld. Trial Court on 15. 4. 06 or he had been present and subjected to man handling by his brothers at the bar. " ( 8 ) IN the application for recalling of CW-1 filed by the petitioner, the copy of which has been annexed with the present petition, the reasons stated for recalling the witness is that on 15th April, 2006 counsel for accused has not come to the court due to illness as he was suffering from critical disease of blood clotting on his brain and as such he was not able to come to the court. Whereas in the present petition, it has been stated that in spite of illness counsel for the petitioner appeared before the trial court but the team of striking lawyers did not allow him to make cross-examination of CW-1 and they forcibly took the counsel in the bar room and hence the cross-examination of CW-1 could not be done. ( 9 ) AGAIN before this Court also petitioner is taking contradictory plea. On the one hand, he states that counsel for the petitioner was ill on 15th april, 2006 and could not attend the court and on the other hand, he states that he was taken forcibly by the striking lawyers from the court room itself. Learned Addl. Sessions Judge has dealt with these contradictory pleas taken by the petitioner before that court also. Learned Addl. Sessions Judge has dealt with these contradictory pleas taken by the petitioner before that court also. ( 10 ) UNDER these circumstances, in view of the contradictory stand taken by the petitioner, I do not find any infirmity or illegality in the impugned orders and the present petition has been filed just to delay the proceedings pending before the trial court and it is nothing but an abuse to the process of law and the same is dismissed with costs of Rs. 2,500/- ( 11 ) PETITIONER is directed to deposit the costs with the trial court within one month from today, falling which the trial court shall recover the same in accordance with the law. Copy of this judgment be sent to the trial court.