Achint Gupta v. Radhey Shyam Goyal

TALWANT SINGH, J NOVEMBER 9, 2022/mr Click here to check corrigendum, if any

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order pronounced on 09.11.2022 + CRL.M.C. 2242/2022 & CRL.M.A. 9443/2022 ACHINT GUPTA ..... Petitioner Through: Mr. Nasir Aziz and Mr. Fuzail Abbasi, Advocates. versus RADHEY SHYAM GOYAL ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. This is a petition filed by the petitioner under Section 482 Cr.P.C. for quashing / setting aside of order dated 13.04.2022 passed in CC No.519807/2016 passed by learned Metropolitan Magistrate Tis Hazari Court, Delhi, rejecting the application filed by the accused under Section 254(2) Cr.P.C. and putting up the matter for DE. 2. The prayer made in the petition is as under:- "(a) To admit and allow the present Petition of the Petitioner and set aside the impugned order dated 13.04.2022 passed by Ms.Bhujali, MM, Central, Tis Hazari Courts,Delhi in CC NO 519807/ 2016 in case titled Radhey Shyam Goyal Vs Achint Gupta ,directing the Ld MM to allow the appearance of additional witnesses Mr.Abhay Kumar Jain, Mr. Jugal Kishor Aggarwal and Mr. Ajay Goenka, members of the committee and the then President respectively because the current President Sh.Sanjay Jain has failed to produce the desired record which is a must in the facts and circumstances of the case." 3. Notice was issued. I have heard the learned counsel for the parties. My considered view is as under:- 3.1 In the present matter, the respondent Radhay Shyam Goyal had filed a complaint under Section 138 Negotiable Instruments Act against the petitioner, which is pending trial before the learned Metropolitan Magistrate. The complaint is in respect of dishonour of cheque of Rs.25 lakhs, which is alleged to have been issued for refund of loans given by the present respondent. The said cheque bearing No. 190478 dated 22.02.2013 is stated to have been issued in the name of the present respondent for the sum of Rs.25 lakhs and assurance was given that the cheque would be honoured at the time of the presentation; however, the cheque was dishonoured on 28.02.2013 and the cheque returned memo states that "Payment stopped by the Drawer". 3.2 Legal notice dated 20.03.2013 was served which was replied to by the present petitioner and a rejoinder dated 16.04.2013 was also sent by the Advocate of the respondent. Thereafter, the complaint was filed on 06.05.2013. Against an order dated 03.02.2021 passed by the learned Metropolitan Magistrate, the present petitioner had approached this Court by filing Crl.M.C.No. 924/2021 in which the following effective order was passed:- "6. The learned Metropolitan Magistrate ought not to have closed the evidence and must have given an opportunity to the petitioner herein to file an appropriate application to compel the attendance of DW-3. The proceedings indicate that the petitioner has not delayed the matter unnecessarily. DW-3 who was to be examined on 03.02.2021 refused to appear. The petitioner ought to have been given one more opportunity to compel the attendence of DW-3. In the interest of justice one last opportunity is granted to the petitioner to take appropriate steps to summon DW-3, subject the payment of cost of Rs.50,000/- to the petitioner herein. 7. The petitioner is directed to take the requisite steps within two weeks from today. The Trial Court shall fix a short date for cross examination of DW-3 and no adjournments shall be granted to the petitioner under any circumstances. 8. Accordingly, the petition is disposed of along with the pending application." 3.3 In the meantime, the petitioner had moved an application under Section 254(2) Cr.P.C. praying that he may be allowed to examine the following three witnesses:- 1. Mr. Ajay Goenka, Ikki Saree Centre, 5871, 1st Floor, Jogiwara, Nai Sarak, Chandni Chowk, Delhi-110006, Whatsapp No. 9311111297 2. Mr. Jugal Kishore Agarwal, Kedar Nath Rattan Lal, 950, Maliwara, Nai Sarak, Chandni Chowk, Delhi- 110006, Whatsapp No.9811116767 3. Mr.Abhay Jain, A.K. Textiles Distributor,