Ms. Chetna Bhalla, Advocate v. M/S REVOLUTION CLOTHING PVT. LTD. ORS Through

O R D E R 21.04.2025

1. The present petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 482 of the Code of Criminal Procedure, 19781) is directed against orders dated 25th February, 2019 and 23rd September, 2019 passed by the Metropolitan Magistrate-04 (NI Act), Central, Tis Hazari Court in C.C. No. 522768/2016.2

2. The underlying proceedings arise from a complaint filed by the Petitioner under Section 138 of the Negotiable Instruments Act, 1881.3 In the said complaint, Respondent No. 1 (the company) is identified Accused No. 1 and Respondents No. 2 and 3 arrayed as its directors. During the course of trial, by order dated 25th February, 2019, the Petitioner’s right 1 “Cr.P.C” 2 titled M/s ICICI Bank Ltd. v. M/s Revolution Clothing Pvt. Ltd. and Others 3 “NI Act” This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:47:17 CRL.M.C. 6387/2019 to cross-examine DW-2 (Mrs. Nisha Somaia) was closed due to non- appearance on the said date. A subsequent application filed under Section 311 of Cr.P.C seeking recall of the witness was dismissed on 23rd September, 2019 by the Trial Court noting that multiple opportunities had already been afforded and that the application, filed at a belated stage, lacked merit.

3. Counsel for the Petitioner submits that non-appearance on 25th February, 2019 was neither deliberate nor with an intent to delay the proceedings. It is stated that counsel for the Complainant was held up before this Court in another matter, and by the time he reached the Trial Court, the order closing cross-examination had already been passed. It is argued that the application under Section 311 of Cr.P.C was moved without undue delay. Counsel emphasises that the Petitioner, being the Complainant, is keen on the expeditious disposal of the case and had no reason to protract the proceedings. The lapse was inadvertent and arose due to circumstances beyond control, and that the denial of cross-examination of DW-2 has resulted in serious prejudice to the Petitioner. Counsel prays that, in the interest of justice, the Petitioner be granted one last opportunity to complete the cross-examination of DW-2.

4. On the other hand, counsel for Respondents, strongly opposes the present petition. It is argued that the present petition is not maintainable as the appropriate remedy is filing a revision petition before the Trial Court. Further, it is urged that the Petitioner has been adopting delay tactics that are causing unnecessary hardship to the Respondents on account of prolonged delay. It is submitted that the Trial Court had already extended considerable latitude to the Petitioner and the Petitioner deserves no further indulgences. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:47:17 CRL.M.C. 6387/2019 It is further contended that the conduct of the Petitioner demonstrates a lack of diligence and a continuing pattern of avoidance, which has unnecessarily prolonged the trial and prejudiced the Respondents. In such circumstances, the impugned orders have no infirmity and no ground is made out for interference under the supervisory jurisdiction of this Court.

5. The Court has considered the aforenoted contentions. On 25th February, 2019, the Trial Court passed the following order: “C.C. No.522768/16 25.02.2019 Present: None for complainant. Both accused in person. Last opportunity was given to the complainant to Cross Examination DW-2 Nisha but still nobody on behalf of complainant is present nor any reason for forthcoming the absence. Hence, Cross examine of DW-2 closed. List for final argument on 01.04.2019 at 12.15.”

6. Subsequently. on an application under Section 311 of Cr.P.C, the Trial Court, while noting the procedural delay in prosecuting the case, passed the following order: “CC No. 522768/16 23.09.2019 Present: Ms. Barkha Sharma, Proxy counsel for the complainant. Accused no. 2 & 3 with Ld. Counsel Sh. Puneet Bajaj. Matter is fixed today for arguments on the application filed by the complainant seeking recall of the order dated 25.02.2019. It is submitted by Ld. Counsel for the accused that the present application is not maintainable as this court does not have the power to recall its order and even if the application is treated us one u/s. 311 Cr.P.C, several opportunities were given to the complainant to conduct cross examination of the defence witness before the DE was closed. Therefore, no more opportunity may be granted. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:47:17 CRL.M.C. 6387/2019 On the other hand, Ld. Counsel for the complainant submitted that he was unable to appear before the court on 25.02.2019 as he had a matter in Hon'ble High Court of Delhi and before he could reach the court, the matter was called. Arguments heard, File perused. Perusal of the application filed by the complainant reveals that no cogent reason has been given by the complainant for seeking an opportunity to cross examining DW-2. The only ground entailed in the application is that complainant bank would suffer irreparable loss/injury which cannot be compensated in terms of money. Admittedly, the present matter has been pending since 2009, DW-2 was cross examined lastly on 30.05.2015 and thereafter several opportunities were given to the complainant to cross examine, but to no avail. Vide order dated 11.02.2017, last opportunity was granted to the complainant to cross examine DW-2. Thereafter, on 16.10.2018 again last opportunity was granted to the complainant for the above mentioned purpose. Thenceforth, on 25.02.2019, since no one was present on behalf of the complainant to cross examine DW-2, hence the opportunity to dross examine DW-2 was closed and matter was fixed for final arguments. On 07.05.2019, the application in question was filed. In view of the above facts & circumstances, it is apparent that despite ample opportunities, the complainant has failed to cross examine DW-2 since 2015 coupled with the fact that no ground, not even namesake, has been disclosed in the application seeking yet another opportunity to cross examine DW-2 at such a belated stage, this court is of the considered opinion that the present application is as much bereft of reasons, let alone cogent, as devoid of merits which cumulatively disentitles the complainant of the discretionary relief envisaged-u/s. 311 Cr.P.C. The application is accordingly stands dismissed. Put up for final arguments on 11.11.2019.”

7. From a plain reading afore-noted orders, is evident Petitioner was granted repeated opportunities to complete the cross- examination of DW-2. The witness was last examined in part on 30th May,

2015. Thereafter, by orders dated 11th February, 2017 and 16th October, 2018, final opportunities were granted, which the Petitioner failed to utilise. Eventually, on 25th February, 2019, when no one appeared on behalf of the Petitioner despite prior intimation, the Trial Court proceeded to close the This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:47:17 CRL.M.C. 6387/2019 right of cross-examination. This sequence of events clearly shows that the order dated 25th February, 2019 was not passed in isolation, but was the culmination of repeated defaults and lack of diligence on the part of the Petitioner. In this backdrop, the Trial Court’s decision cannot be faulted and, on its face, reflects a fair exercise of discretion intended to safeguard procedural integrity and avoid unnecessary delay.

8. At the same time, a fair trial is the most essential element of the criminal justice system. The right to cross-examine a material defence witness is not a mere formality, and denying that right, particularly to a complainant who has initiated and pursued the proceedings in good faith, can materially prejudice the case. The Court must balance the delay caused against the prejudice that may result from outright denial of such opportunity.

9. This Court also notes that proceedings before the Trial Court have remained stayed pursuant to this Court’s order dated 11th December, 2019. It is not disputed that the matter arises from a complaint filed by the Petitioner itself and delay has been prejudicial to them as well. Considering that the default on 25th February, 2019 was attributed to the counsel being engaged before this Court, and considering the interest of justice, this Court finds it appropriate to permit the Petitioner one last opportunity to conclude the cross-examination of DW-2. However, such indulgence must be accompanied by appropriate costs to offset the delay and inconvenience caused to the Respondents.

10. Accordingly, the present petition is disposed of with a direction that the Petitioner shall pay a cost of INR 3,00,000/- to the Respondents within two weeks from today. Upon proof of payment of the said amount, the This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:47:17 CRL.M.C. 6387/2019 Petitioner shall be permitted a final opportunity to cross-examine DW-2.

11. All parties shall appear before the concerned Metropolitan Magistrate on 8th May, 2025, on which date the cross-examination shall be conducted. In case the cross-examination is not conducted on the said date due to reasons not attributable to the parties, the same be positively conducted on a date the Trial Court deems appropriate. It is made clear that no further opportunity shall be granted to the Petitioner in this regard.

12. It is further clarified that the Petitioner fails to utilise the opportunity granted on the date fixed, or fails to comply with the condition regarding payment of costs, the Trial Court shall be at liberty to proceed with the matter in accordance with law, without granting any further indulgence. The Trial Court is also requested to make all efforts to expedite the proceedings and bring the matter to a logical conclusion at the earliest.

13. With the above direction, the present petition is disposed of. APRIL 21, 2025 SANJEEV NARULA, J This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:47:18 CRL.M.C. 6387/2019