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Venu Madhava K, M/s Four Seasons Energy Ventures Pvt. Ltd. Versus The State (NCT Of Delhi) & Indian Potash Ltd.

2017 (12) TMI 287 - DELHI HIGH COURT

Power to summon material witness, or examine person present - opportunity to cross-examine a witness is not given to the either of the party - Held that:- The very purpose of Section 137 of Evidence Act and Section 311 Cr.P.C. would be defeated if the opportunity to cross-examine a witness is not given to the either of the party. - In the present case the dismissal of the application moved by the petitioner No.1 under Section 145 (2) NI Act as well as under Section 311 Cr.P.C. otherwise mean .....

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Izhar Ahmad, APP for State. Mr. Tanveer Ahmed Mir, Advocate for R-2. JUDGMENT I. S. MEHTA, J. 1. By way of the instant petition under Section 482 read with Section 483 Cr.P.C. the petitioners are seeking for setting aside and quashing of the impugned order dated 16.05.2013 passed by the learned Metropolitan Magistrate (Central-02), Tis Hazari Courts, Delhi in CC. No. 648/RN/2010 wherein the application filed by the petitioners under Section 311 Cr.P.C. was dismissed. 2. The brief facts as stated .....

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k Pande, filed a complaint before the Court of Learned ACMM, Tis Hazari Courts, New Delhi under Sections 138 of the Negotiable Instruments Act, 1881 against the accused persons, i.e. (1) M/s Four Seasons Energy Ventures Pvt. Ltd., (petitioner no. 2 herein), (2) Venu Madhava Kaparthy (Director) (petitioner no. 1 herein) and (3) Mahadevan Ramaswamy Iyer Makiemadom (Director). 3. It is alleged in the said complaint that the petitioner No.1 and Mahadevan Ramaswamy Iyer Makiemadom (Director)/accused .....

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e office and made representations that they were running a company which was carrying on the business of facilitating deals, contracts, supplies to International parties by India based companies in the field of fine quality iron ores. In this regard they had already resourced a foreign buyer based in Switzerland under the name & style of M/s. Glencore International A.G. and that in case respondent No.2Company was interested then they could sign a contract with M/s. Glencore International A.G .....

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ational A.G. 4. Further it is alleged that during the negotiations the petitioner No.1 and the accused No.3 stated to the respondent No.2/complainant that in order to make the deal of supply to M/s. Glencore International A.G. workable, respondent No.2/complainant was required to pay a mobilization advance of ₹ 2.50 crores to the aforesaid accused and also would have to make payments at the behest and at the instance of the said accused for procurement of iron ore at the end of the accused .....

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encore International A.G. at their end which on the face of it were extremely lucrative in comparison to the rates at which the iron ore were to be supplied ultimately to M/s. Glencore International A.G. As the respondent No.2/complainant was to finalize the deal, enter into a contract with M/s. Glencore International A.G, arrange shipping and was also assured of payment of 98% of the value of goods shipped through irrevocable letter of credit to be opened by M/s. Glencore International A.G. in .....

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ith CHA (Customs House Agent) to complete the loading of cargo. Pursuant to the receipt of the communication dated 08.02.2010, the petitioner no.1 and the accused No.3 came to Delhi and on 11.02.2010 a contract was signed and executed by and between the petitioner No.2-Company through its Director-petitioner No.1 and the respondent No.2/complainant through its Senior Manager (PO) Ashok Pande in presence of the accused No.3 and other officers of the respondent No.2/complainant company. As per the .....

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of the international buyer M/s. Glencore International A.G., the payment conditions, sampling and analysis were clearly agreed upon. 6. It is alleged that pursuant to the signing of the contract between respondent No.2/complainant and the petitioners, the respondent No.2/complainant provided the initial mobilization advance of ₹ 2.50 crores to them. The petitioners were already aware that the terms and conditions of the contract between respondent No.2/complainant and M/s. Glencore Intern .....

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r No.2-Company provided a cheque dated 09.02.2010 drawn on Indian Overseas Bank, Appareddypalaya- ISRO View Branch, 3274, 11th Main Road, Hall II Stage, Bangalore, bearing No. 909722 for an amount of ₹ 2.50 crores in favour of respondent No.2/complainant. Further a demand promissory note to the tune of ₹ 2.50 crores had already been prepared by the petitioners and the same along with the cheque were handed over to respondent No.2/complainant at New Delhi by their representatives. 7. .....

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actually procured through on spot buying at much higher rates compared to their own proposal and costing sheet. On 6000 MT the respondent no. 2/complainant had to pay dead freight @ US$ 21.00 per MT. Before the consignment was loaded the surveyors as appointed by the accused mentioned above, had submitted a report according to which Fe content as analyzed at the load port was 60.40%. 8. On 19.04.2010 the vessel accordingly arrived at the discharge port Caofeidian, North China and completed disc .....

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at the destination. 9. It is alleged that on account of serious defaults at the petitioner's end, firstly in not being able to provide the entire consignment at the original bench mark rates as specified earlier by the petitioners, and secondly on account of delay, demurrage and dead freight charges that had been incurred by the respondent No.2/complainant, the respondent No.2/complainant had to make payments in the nature of payments made to various suppliers for on spot buying, ocean frei .....

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ld make sure that all the liabilities are cleared and in this regard the petitioner No.1 for and on behalf of petitioner No.2-Company and accused No.3 and further communicated that the bank guarantee of ₹ 1.25 crores already existing in favour of the respondent No.2/complainant should be invoked for the same and recover part debt. Accordingly, the respondent No.2/complainant invoked the bank guarantee towards part realization of the outstanding liabilities. The petitioners were also inform .....

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/- would still be left at their end for payment to the respondent No.2/complainant. Accordingly, the respondent No.2/complainant presented the said cheque to its banker State Bank of India, East Patel Nagar, New Delhi for encashment, however, the same was dishonoured vide return memo dated 07.08.2010 with remarks Exceed Arrangements . 11. Thereafter, the respondent No.2/complainant company issued a legal notice dated 26.08.2010 demanding therein to make the payment within 15 days from the receip .....

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hable under Section 138 of the NI Act and issued summons to the accused persons/petitioners vide order dated 09.02.2011. Thereafter, vide order dated 17.03.2012 the learned Metropolitan Magistrate served notice under Section 251 Cr.P.C. against the accused persons through the counsel. 13. Subsequently, on 11.10.2012 the petitioners filed an application under Section 145(2) NI Act read with Section 311 Cr.P.C. for recall of the respondent no. 2/complainant witness for cross examination. The said .....

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missed the said application of the petitioners as the earlier order dated 11.10.2012, which remained unchallenged, attained finality. Hence, the present petition. 16. The learned counsel for the petitioners has submitted that while dealing under Section 138 NI Act cases though it may be summary but the basic structure of the proceeding cannot be taken away. He has further submitted that the learned Metropolitan Magistrate went wrong while framing the notice in the absence of the petitioners and .....

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s of Cr.P.C. as also provisions of section 143 NI Act. Admittedly, after passing the summoning order on 16.11.2010, no order with any reasons has ever been passed by the learned MM at any stage in order to find out as to what sort of procedure is being followed by learned MM till 17.03.2012, when notice/ charge was framed against all the accused through their learned counsel and then even till date. The proviso (2) to Section 143 NI Act assumes significance and has not been complied with at all .....

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No.2/complainant and other CW s) despite the said learned counsel for accused, at the stage of framing of notice, has pleaded not guilty and claimed trial . Entire process followed by the learned Metropolitan Magistrate has been totally wrong, erroneous and against well established principles of law. 18. The learned counsel for the petitioner has further submitted that after framing of notice/charge against the accused through their learned counsel on 17.03.2012, the learned MM has even decline .....

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o cross examine the respondent No.2/complainant and other material witnesses in the above two orders (impugned orders) are completely contradictory to each other and against principles of law. The said two orders dated 11.10.2012 and 16.05.2013 passed by the learned Metropolitan Magistrate are not only bad, illegal, wrong and erroneous but also against the law laid down by the Hon ble Supreme Court in case titled Radhey Shyam Garg vs. Naresh Kumar Gupta; 2009 (13) SCC 201 while upholding the jud .....

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lso placed reliance on the following judgments:- 1) Babu vs. State of Kerala; 2010 (9) SCC 189. 2) P. Sanjeeva Rao vs. State of AP; 2012 (7) SCC 56. 3) Maria Margarida Sequeria Fernandes vs. Erasmo Jack de Sequeria through LRs; 2012 (3) SCALE 550. 4) Natasha Singh Vs. CBI (State);MANU/SC/0483/2013. 5) Anurag Sood vs. State (NCT of Delhi); 2017 (1) JCC 525. 6) Ajay Jain vs. Purshottam Nath Jain & Sons (HUF); MANU/DE/0396/2016. 21. On the contrary the learned counsel for the respondent No.2 ha .....

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el. He has further submitted that in the present case on 17.03.2012 when the notice was framed, the accused/petitioner did not choose to file application under Section 145 (2) N.I. Act on that date seeking cross examination of the complainant in that scenario the trial court listed the matter for defence evidence. Thereafter, on 06.08.2012, the accused filed defence evidence by way of affidavit as DW-1. On the next date i.e. on 13.09.2012 cross examination was to be done by the respondent No.2/c .....

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311 Cr.P.C. was filed by the petitioner again to recall the respondent No.2/complainant knowing that the earlier application under Section 145 (2) NI Act already stands dismissed on 11.10.2012 and the present application under Section 311 Cr.P.C. moved by the petitioner was too dismissed vide impugned order dated 16.05.2013. Therefore, the present petition is devoid of merit and same deserves to be dismissed. Reliance is placed on the judgment in case Rajesh Agarwal vs. State; 2010 (171) DLT 51. .....

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sed persons themselves had sought exemption from personal appearance before the learned Metropolitan Magistrate, which was granted by this Court in Crl.M.C. No. 1648 of 2011 filed by the petitioners/ accused persons vide order dated 20th May, 2011 and only pursuant thereof notice was framed against the petitioners and other accused person through their counsel. Under these circumstances, the notice framed by the learned Metropolitan Magistrate cannot be termed as arbitrary or illegal. Moreover, .....

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te therein are absolutely right and legally passed with proper application of mind and does not suffer any illegality/absurdity of any sort. Also, the petitioners have failed to point out any irregularity/illegality in the impugned orders which warrant exercise of inherent powers by this Court under Section 482 Cr.P.C. 24. The learned counsel for the respondent No.2 has further stated that the matter has already reached at the stage of defence evidence (petitioner herein) and filing the present .....

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rved through the counsel of the accused on 17.03.2012. 26. Thereafter, on 11.10.2012 the petitioner No.1 through counsel moved an application under Section 145(2) NI Act read with Section 311 Cr.P.C. for recall of respondent No.2/complainant witness for cross-examination. The said application moved by the petitioner was dismissed by the learned Metropolitan Magistrate (C-02)/Delhi vide order dated 11.10.2012 which is reproduced s under:- M/s Indian Potash Ltd. Vs. M/s Four Seasons Energy Venture .....

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d has moved an application u/s 145(2) of the N.I. Act for cross examination of the complainant as well as an application u/s 315 Cr.P.C with the permission for accused no.2 to be allowed to step into the witness box as DW1. The application u/s 145(2) of the N.I. Act has been belatedly moved. As per law laid down, the same was to be immediately filed after framing of notice. Now, the case has already reached at the defense stage. Infact, last opportunity was granted to the accused to lead DE on t .....

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13. Sd/- (CHANDER MOHAN) MM (C-02)/Delhi. 11.10.2012 27. Further the petitioner again on 02.03.2013 through counsel moved an application under Section 311 Cr.P.C. for summoning material witnesses and for recall of the AR of the respondent No.2/complainant for cross examination. The aforesaid application under Section 311 Cr.P.C. moved by the petitioner was dismissed by the learned Metropolitan Magistrate vide order dated 16.05.2013 which is reproduced as under:- 16.05.2013 CC No. 648/RN/10 M/s I .....

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amining the complainant under section 142. The said application has already been declined by this court vide order dated 11.10.2012 which remained unchallenged and hence, attain finality. The case has already reached at the stage of DE and infact, last opportunity was granted to the accused to lead DE. At this stage, the application u/s 311 Cr.P.C. is not maintainable hence, dismissed. Already last opportunity was granted to the accused to lead DE on the previous date. Still in the interest of j .....

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o the right conclusion for just decision of a case pertaining to the incident. The right of cross-examination under Section 137 of the Indian Evidence Act, 1872 is a well guarded device for discovering the truth to which the witness has deposed in his statement, i.e. Examination-in-chief. Therefore, the right of cross-examination is a statutory right which vests in a party to the proceedings. 30. For the context of the instant case, reference may be made to Section 311 Cr.P.C. which is reproduce .....

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tion manifestly gives purely discretionary authority to a Criminal Court, firstly, by enabling it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. Secondly, it is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This .....

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either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 32. The object of Section 311 Cr.P.C. is that, there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. This section is a general section which applies to .....

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he Indian Evidence Act, 1872, his examination-in-chief, his cross-examination and his re-examination. It follows that the provision that a witness shall be examined means not only that he shall be examined-in-chief but also that he should be permitted to be cross-examined and re-examined. 34. Further, examination-in-chief of a witness alone without his cross-examination is incomplete statement of witness and is not evidence under the Indian Evidence Act. Whole of evidence, i.e. examination-in-ch .....

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