TMI Blog2017 (12) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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 in the complaint filed by the respondent No.2-M/s Indian Potash Ltd. under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) are that the respondent no. 2/complainant is a company duly incorporated under the Indian Companies Act, 1956 having its registered office at Ambal Building, 3rd Floor 727, Anna Salai, Chennai- 600006 and corporate office at 3rd Floor, Pragati Tower, 26 Rajinder Place, New Delhi- 110008. The respondent No.2/complainant, through its Senior Manager (PO), Sh. Ashok 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 V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of petitioner No.2 a Bank Guarantee to the tune of ₹ 1.25 crores would be executed in favour of respondent No.2/complainant in order to secure him as regards their mobilization advance. It is further alleged that the petitioner No.1 and the accused No.3 for and on behalf of petitioner No.2-Company quoted prices of supply of the iron ore of specific purity as required by M/s. Glencore 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 favour of the respondent No.2/complainant, the deal was worth the business proposition and therefore the respondent No.2/complainant accepted the offer. 5. It is stated that on 08.02.2010, a communication was sent by the accused persons to the respondent No.2/complainant stating the details of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is stated that the entire consignment was therefore loaded in the vessel beyond time on account of reasons solely attributable to the accused mentioned above and huge demurrage charges and dead freight had to be incurred by the respondent no. 2/complainant for reasons solely attributable to the accused persons, because they failed to provide the nominated quantity of the consignment at the port on time, till sailing of the vessel they could only procure around 37,000 WMT of iron ore which was 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue would be honoured at all costs and would make funds available in their bank in order to have the said cheque realized. Even after encashment of the said cheque, a balance outstanding amount of ₹ 1,47,04,201/- 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 receipt of the legal notices but the petitioners failed to make the payment in question to the respondent No.2/complainant. Consequently, the respondent No.2/complainant filed a complaint case under Section 138 of NI Act before the Court of Ld. Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi, on 13.10.2010 against the accused persons including the petitioners. 12. The learned Metropolitan Magistrate (Central-02), Delhi vide order dated 16.11.2010 took cognizanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 by the learned Metropolitan Magistrate. He further submits that even the process of ordering, framing of notice and framing of charge/notice under Section 251 Cr.P.C. against all the accused, through their learned counsel on 17.03.2012 has not been proper and correct. While framing notice the learned Metropolitan Magistrate straight away called upon the accused, through their learned counsel to disclose the defence and lead DE (even before granting any opportunity to cross examine the respondent 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 declined the written request made by the accused at the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel notice can be framed and even under Section 313 Cr.P.C. Statement can be recorded through counsel. 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/complainant, they did not appear and thereafter, the NBW was issued. The on 11.10.2012 an application under Section 145 (2) NI Act was filed along with an application under Section 315 Cr.P.C. On the same date, an application under Section 145 (2) NI Act was dismissed and application under Section 315 Cr.P.C. was allowed. On 19.01.2013 the petitioner No.1 did not come forward to testify himself as a witness and for cross examination and ultimately, on 02.03.2013 a fresh application under Section 311 Cr.P.C. was filed by the petitioner again to recall the respondent No.2/complainant knowing tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the present petition would only delay the trial which would cause prejudice to the respondent No.2/complainant. 25. In the instant petition, from the perusal of the record it shows that the complaint was filed on 13.10.2010 and the same was firstly taken up on 23.10.2010 and thereafter pre-summoning evidence by way of affidavit of CW-Ashok Pande was tendered; cognizance was taken and the accused persons (including the petitioner herein) were summoned on 16.11.2010 and notice under Section 251 Cr.P.C. was served 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 Ventures Pvt. Ltd. CC No. 648/RN/10 11.10.2012 Present: Ld proxy counsel for the complainant. Both the accused alongwith Ld. Counsel. Both the accused are dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, there is no specific provision for cross examining 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 justice one more opportunity is given to the accused to lead DE. Be listed for 30.07.2013 at 11.00 a.m. Sd/- (CHANDER MOHAN) MM (C-02)/Delhi. 16.05.2013. 28. Here, the examination of a witness as under Section 137 of the Indian Evidence Act, 1872 means, his examination-in-chief, his cross-examination and if any ambiguity does arises to the Court, re-examination by the former. 29. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony to reach to the right conclusion for just decision of a case pertaining to the incident. The right of cross-examination under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. However, it has to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 33. The examination of a witness means as laid down in Section 137 of The 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-chief and cross-examination, is to be read together for correct appreciation to find out truth there from cross-examination being a part of evidence, while judging veracity of statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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