SANDEEP CHAUDHARY Vs. COL. R.P. MENDIRATTA

JUDGEMENT

(1.) THIS is a petition under Section 482 Cr.P.C. read with article 227 of the Constitution of India for setting aside the order dated 09.01.2012 passed in Crl. Rev. P. No. 86/2011 by Sh. S. K. Sarvaria, the learned District & Additional Sessions Judge, North West District, Rohini Courts, Delhi dismissing the revision petition of the petitioner against the order dated 23.09.2011 passed by the learned Metropolitan Magistrate by virtue of which the application of the petitioner under Section 311 Cr.P.C. for calling defence witness Sharad Mehta was disallowed. Briefly stated the facts of the case are that the petitioner is facing trial for an offence under Section 138 of the Negotiable Instruments Act for having issued three different cheques aggregating to an amount of Rs. 13,50,000/ -. The petitioner/accused had filed an application under Section 311 Cr.P.C. for summoning Sharad Mehta, a US citizen and brother -in -law of the respondent herein, as a witness in the Court. This application of the petitioner was allowed and Sharad Mehta was summoned as a witness. On 04.01.2011, Sharad Mehta was in India, but the date on which he was to be examined, the learned Presiding Officer was not available. The petitioner had not taken requisite steps for summoning the said witness by depositing the money. It has been noted in the order dated 23.09.2011 that Sharad Mehta went back to USA as he could not stay for long in India. The matter had been pending in the Courts below for 31/2 years and it was also noted by the learned Trial Court that the petitioner had not been completing his defence evidence for the said period. On 04.04.2011, the petitioner was directed specifically to take steps within a period of one week to get the summons issued to the witness. Despite this, no steps were taken and it seems that the petitioner was indulging in dilatory tactics. This fact was noted by the learned Magistrate whereupon he closed the opportunity to lead defence evidence of the petitioner and fixed the case for final arguments on 13.10.2011.

(2.) THE petitioner feeling aggrieved by the said order preferred a revision petition bearing no. 86/2011, which came to be decided by the learned Additional Sessions Judge vide order dated 09.01.2012. The learned Additional Sessions Judge had also noted the concern of the learned Trial Judge that the petitioner himself was responsible for indulging in dilatory tactics by not concluding the defence evidence. The exact language used by the learned Additional Sessions Judge is reproduced herein under:

(3.) I have carefully heard the respective arguments. In this case, number of opportunities were given to the petitioner/accused for conclusion of the defence evidence and right from 2009, the same witness Sh. Sharad Mehta is asked to be called. This witness has appeared on 04/01/08 and has no personal stake in this case. He came from USA by spending handsome amount by journey by air which amount, undisputedly, was not reimbursed to him. Therefore, extra efforts should have been made by the petitioner/accused by moving application before Ld. CMM/ACMM for assignment of the case to any other Court for recording statement of the witness Sh. Sharad Mehta which was not done.