- The instant petition under Section 482 of the Code of Criminal
Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of petitioner
seeking quashing/setting aside the order dated 24.07.2023 passed by
learned Additional Sessions Judge, Central District, Tis Hazari Court,
Delhi in Appeal No.264 of 2022 titled as “Rajesh Marwah vs. Ankur
Rastogi”. - Briefly stated, the facts of the present case as borne out of the
complaint filed under Section 138 of Negotiable Instrument Act,
CRL.M.C. 5428/2023 Page 2 of 9
1881 (‘NI Act’), are that the accused had approached and requested
the complainant for some financial assistance in the form of friendly
loan in the first week of September, 2016. The complainant,
considering the difficulty of the accused, had paid a sum of
Rs.1,00,000/- as a friendly loan to the accused in the mid of
September, 2016. The accused had assured the complainant that the
same will be returned by August, 20l7 and in discharge thereof, the
accused had issued a post-dated cheque bearing No.263599, dated
10.08.2017, for Rs.1,00,000/- drawn on ICICI Bank Ltd., Sector-9,
Rohini Branch, Delhi, being the payment of the aforesaid friendly
loan amount in favour of the complainant. The accused had assured
the complainant that the aforesaid cheque will be encashed upon its
presentation. It is stated that the complainant had presented the
cheque in question before his banker i.e. Punjab National Bank in
Gokhle Market Branch, Delhi, for encashment but to the utter
surprise and dismay of the complainant, the said cheque was returned
back as dishonored with the remarks “Funds Insufficient” vide Debit
Advice dated 14.08.2017 issued by the banker of the complainant. It
is stated that the complainant had apprised the said fact of
dishonouring the cheque in question to the accused and the accused
had requested the complainant for its re-presentation after one month
and had assured the complainant that the same will be honoured.
Accordingly, as per the instructions of the accused, the complainant
had re-presented the cheque in question before his banker but the said
cheque had again got dishonoured with the remarks “Funds
Insufficient” vide Debit Advice dated 27.09.2017 issued by the
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banker of the complainant. Thereafter, the complainant had issued
legal notice dated 03.10.2017 to the accused, however, the accused
had failed to make the payment. Accordingly, the present complaint
under Section 138 read with Section 142 of NI Act was filed by the
complainant. The petitioner had then filed an application under
Section 311 of the Cr.P.C. seeking recall of the complainant for
cross-examination, which was dismissed vide 07.01.2023, passed by
learned Metropolitan Magistrate, Central District, Tis Hazari Court,
Delhi in CC No. 13981/2017. The petitioner had then approached this
Court, assailing the said order, wherein this Court was pleased to
uphold the order of the trial Court and dismiss the petition of the
petitioner, vide order dated 01.12.2023. - Learned counsel for the petitioner argues that Appellate Court
has erred in holding that the accused was provided with due
opportunity to examine the complainant and/or that since he was an
Advocate himself thus he ought to have known the procedure and
practice to be adopted. It is further argued that the reasons as stated in
the application U/s 311 of Cr.P.C. as also 391 of Cr.P.C. were not to
fulfil any lacuna in the trial but to corroborate the defence with
documentary evidence in this regard. It is argued that both the
learned Trial Court and Sessions Court had failed to appreciate
the statement of the accused in which he had denied of knowing the
complainant and in fact even the complainant admitted to have been
acting at the behest of the said Upender Gupta who was admittedly
instrumental in hatching the entire conspiracy and thus it
was imperative to confront witness with the email dated 20.02.2018.
CRL.M.C. 5428/2023 Page 4 of 9
It is argued that impugned complaint fails to satisfy necessary
ingredients of the offence complained of. Further, the
impugned complaint is an abuse and misuse of process of law
and has caused travesty of justice and truth can come to fore only if
the Complainant is confronted with the email dated 20.02.2018 and
his relation with the said Upender Gupta. - Per Contra, learned counsel for the respondent no. 2 has
opposed the petition stating that several opportunities were granted
to the appellant for cross- examination of complainant-respondent by
learned Trial Court and further, learned Trial Court had passed
detailed and reasoned order on application under section 311 CrPC
while dismissing the said application moved by the appellant-
accused. - This Court has heard arguments addressed on behalf of both
the parties and has perused the material on record. - In the present case, the impugned order was passed on
24.07.2023 vide which the application filed under Section 391 of
Cr.P.C. on behalf of the present petitioner, who is accused before the
learned Trial Court, was dismissed. The relevant portion of impugned
order reads as under:
“8. In the impugned judgment of conviction, learned Trial Court had held
that the appellant herein had failed to rebut the mandatory presumption
of law and has also failed to controvert the story of the complainant or to
establish his own story. It is also observed in the said impugned order
that the accused in his plea of defence recorded on 07.08.2019 has
admitted his signature on agreement in the month of July, 2017 and his
signature on the Loan Agreement Ex.CW-I/A. The Loan agreement
clearly states that friendly loan of Rs.3,30,000/-was received by the
accused. The acused has admitted himself to be a practicing lawyer for
several years earlier. The learned Trial Court has found highly
CRL.M.C. 5428/2023 Page 5 of 9
improbable that a person who has practiced as a lawyer, would sign an
agreement without knowing the meaning of the contents thereof and its
consequences and implications. The cheque in question is also admitted
by the accused-appellant. In respect of issue of alleged e-mail dated
20.02.2018, learned Trial Court has held /observed in the impugned
judgment that the complainant has denied the receiving of the said
alleged e-mail or any knowledge of the same through Mr. Upendra
Gupta, sent by the accused i.e. Mark A. It is also observed that the same
has not been supported by any affidavit u/s 65B of the Indian Evidence
Act. The alleged email that has been sent by the accused has not been
reverted back to by the complainant or Upender Gupta. It is concluded
by learned Trial Court that the accused has failed to prove that the email
was received by the complainant or that the complainant in any manner
approved of or confirmed his assertion that no money was received by
the accused and thus, this self serving e-mail allegedly sent by the
accused to the complainant failed to prove that no loan was received by
the accused. It is also mentioned in the impugned judgment that despite
the alleged email mentioning that ‘if you use the said cheque,for the same
you will be responsible for theconsequences arising therefrom’, the
accused, who practiced as a lawyer for several years, has failed to initiate
any legal action against the complainant for retaining his cheque or for
declaring the loan agreement null and void - The appellant has examined himself as DW-1 before learned Trial
Court and in his cross-examination he has admitted that agreement
Ex.CW-1/1 was executed between him and the complainant. He has also
admitted that he never asked the complainant to return his cheque. He has
also admitted that he had sent e-mail to Upender Gupta not to present the
cheque in question. He has also admitted that he was aware that he had
filled payee name o the cheque as Ankur Rastogi. He has also admitted
that on the date of presentation of cheque, there was no sufficient balance
in his account. The appellant herein did not examine the said Upender
Gupta in his defence evidence before learned Trial Court to prove his
defence. In the present application also, the appellant has not stated that
he want to examine the said Upender Gupta as additional evidence in the
present appeal. The appellant want to cross-examine further complainant-
respondent as an additional evidence. - In view of above discussion, I do not find merits in thepresent
application under section 391 of the CrPC, and therefore,same is
rejected.” - In the given facts and circumstances, it will be useful to refer
to Section 391 of Cr.P.C., which is reproduced as under:
CRL.M.C. 5428/2023 Page 6 of 9
“S. 391 Appellate Court may take further evidence or direct it to be
taken:
(1) In dealing with any appeal under this Chapter, the Appellate Court, if
it thinks additional evidence to be necessary, shall record its reasons and
may either take such evidence itself, or direct it to be taken by a
Magistrate, or when the Appellate Court is a High Court, by a Court of
Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the
Magistrate, it or he shall certify such evidence to the Appellate Court, and
such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the
additional evidence is taken.
(4)The taking of evidence under this section shall be subject to the
provisions of Chapter XXIII, as if it were an inquiry.” - The Hon’ble Apex Court in Ajitsinh Chehuji Rathod v. State
of Gujarat 2024 SCC OnLine SC 77 had recently, while considering
the implications of Section 391 of Cr.P.C. held as under:
“9. At the outset, we may note that the law is well-settled by a catena of
judgments rendered by this Court that power to record additional
evidence under Section 391 Cr.P.C. should only be exercised when the
party making such request was prevented from presenting the evidence in
the trial despite due diligence being exercised or that the facts giving rise
to such prayer came to light at a later stage during pendency of the appeal
and that non-recording of such evidence may lead to failure of justice.” - This Court notes that the present petitioner had filed an
application under Section 311 of Cr.P.C. for cross-examination of
respondent no. 2 before the learned Trial Court on 07.01.2023 after a
delay of more than three years and five months from the date of
cross-examination of CW-1 i.e. on 26.07.2019. The present
petitioner, in his application filed under Section 311 of Cr.P.C. before
the learned Trial Court had stated that the complainant needs to be
confronted with several documents in relation to his previous alleged
CRL.M.C. 5428/2023 Page 7 of 9
relation with one Upender Gupta, without which the complainant’s
version would go unrebutted, and such questions could not be put
to the complainant as there was communication gap between the
accused and his counsel. - This Court notes that the learned Trial Court, while dismissing
the application of present petitioner filed under Section 311 of
Cr.P.C., had considered this ground and had observed that the
complainant had been extensively cross-examined on 26.07.2019,
and the accused had failed to show any sufficient cause to justify the
delay of more than three years or any reason as to why the recall of
CW-1 for further cross-examination was essential for just decision of
the case. - The Petitioner was convicted for offence under Section 138 NI
Act vide order dated 20.10.2022 passed by learned Trial Court. The
Petitioner had preferred an Appeal bearing No. 264/2022 titled
as “Rajesh Marwah Vs. Ankur Rastogi”, and had then filed an
application under Section 391 of CrPC, which was dismissed vide
order dated 24.07.2023 by the learned . - Upon thorough examination of the evidence presented,
including the cross-examination of the complainant Ghanshyam
Dass, this Court notes that that the complainant Ghanshyam Dass was
extensively questioned with regard to his association with his
attorney and the individual named Upender Gupta. During his cross-
examination on 26.07.2019, the complainant disclosed that he has
known accused Rajesh Marwah for approximately 7-8 years through
his attorney, Mr. Upender Gupta. Furthermore, it was revealed that
CRL.M.C. 5428/2023 Page 8 of 9
the complainant has had a relationship with Mr. Upender Gupta for
approximately 15-20 years, and had entrusted him with the authority
to settle the matter at hand through a Special Power of Attorney
(SPA). Detailed inquiries regarding the transactions involved in the
case and the roles of both Upender Gupta and the complainant
Ghanshyam Dass were addressed during the cross-examination of
CW-1. Therefore, this Court acknowledges that the complainant was
specifically questioned regarding the issues raised by the petitioner,
and the relevant responses have been duly recorded in the cross-
examination of CW-1 dated 26.07.2019. - This Court also takes note that the appellant, identified as DW-
1 before the learned Trial Court, during cross-examination,
acknowledged the existence of agreement Ex.CW-1/1 between
himself and the complainant. Furthermore, he admitted to never
requesting the return of his cheque from the complainant.
Additionally, he confessed to sending an email to Upender Gupta
instructing not to present the aforementioned cheque. It was further
disclosed that he was fully aware of having filled the payee name on
the cheque as Ankur Rastogi. Moreover, he admitted that his account
did not have sufficient funds on the date of the cheque’s presentation.
It is also noted that the appellant opted not to call Upender Gupta as a
witness to substantiate his defense during the proceedings before the
learned Trial Court. It is also noted that in the current application, the
appellant has not expressed a desire to summon Upender Gupta as
additional evidence in the present appeal. Instead, the appellant seeks
CRL.M.C. 5428/2023 Page 9 of 9
to conduct further cross-examination of the complainant-respondent
as an additional evidence. - In the aforesaid facts and circumstances, it is clear that the
petitioner had extensively questioned the complainant in his cross-
examination, and there is no ground to further examine the
complainant. In these circumstances, this Court is of the opinion that
the provisions of Section 391 of Cr.P.C. cannot be used to delay the
proceedings or to cause inconvenience to the other party as that also
amounts to miscarriage of justice by delaying the proceedings under
Section 138 NI Act, and abuse of process of law, especially in cases
where complainant has already been cross-examined in detail and no
grounds are shown to recall the witness. - In view thereof, this Court does not find any merit in the
present petition and the same stands dismissed along with pending
application, if any. - The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
FEBRUARY 5, 2024/ns
