TaxTMI 
TaxTMI 
2017 (12) TMI 287
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....or 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 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 No.3 have been all time in-charge of and in day to day control of the business of the petitioner No.2-Company, moreover representing themselves to be the lawful directors and in-charge of the petitioner No.2-Company, have directly made representations to the respondent No.2 at its corporate office. It is further alleged that the petitioner No.1 and the said accused No.3 on behalf of the petitioner No.2-Company visited the office of the respondent No.2 in January 2010 at New Delhi at its corporate....
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....f 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 export order as covenanted in the said communication. Also, it was clearly stated and admitted that the accused would supply all the material, provide the port plot, stock the iron ore and coordinate with 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 covenants of the said agreement, the accused agreed to deliver a total qu....
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....on 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. On 19.04.2010 the vessel accordingly arrived at the discharge port Caofeidian, North China and completed discharge on 28.04.2010. Even at the discharge port demurrage charges were incurred. At the discharge port the quality analysis of CIQ China and its report dated 09.05.2010 was informed by M/s. Glencore International A.G. to respondent No.2/complainant on 21.05.2010 and as per the said report Fe (Iron) content was well below 60% and was actually found to be only 57.70%, on account of which respondent No.2/complainant suffered huge embarrassment and M/s. Glencore International A.G. rejected the cargo 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 ben....
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....dent 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 cognizance of the offence punishable 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 application was dismissed by the learned Metropolitan Magistrate vide order dated 11.10.2012. 14. Thereafter, the petitioners filed another application under Section 311 Cr.P.C. before the learned Metropolitan Magistrate, Tis Hazari District Court, Delhi, for summoning material witnesses and....
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....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 available opportunity, under Section 145(2) NI Act read with Section 311 Cr.P.C for cross examination of the respondent No.2/complainant and other CW's on 11.10.2012 (simply on ground of delay) and then once again by dismissing the independent application filed on 02.03.2013, under Section 311 Cr.P.C. vide impugned order dated 16.05.2013. It is further submitted that the reasons given for declining the request and prayer of the petitioners to 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'....
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.... 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 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. 22. The learned counsel for the respondent has further submitted that the mala fide attempt on the part of the petitioners to mislead this Court is apparent from the face of the record in as much as on one hand the petitioners are seeking quashing of order dated 17.03.2012 whereby notice under Section 251 Cr.P.C. was framed against the petitioners primarily on the ground that it was framed on the petitioners through their counsel and not personally on them but on the other han....
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....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 directed to be released on bail on furnishing of Bail Bonds for a sum of Rs. 1 Lacs and Surety Bond og the like amount. Accused no.3 Mahadevan Ramaswamy Iyer Maliemadom has furnished Bail Bond/Surety Bond. Accepted. Accused no.2 Venu Madhava Kaparthy has sought some time to furnish Bail Bond/Surety Bond. Request allowed. Ld Counsel for the accused 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 the previous date, hence present application is not maintainable at this ....
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.... 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 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 reproduced as under:- "311. Power to summon material witness, or examine person present-Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and reexamine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." 31. The aforesaid section manifestly gives purely discretionary authority to a Criminal Court, firstly, by enabling it at any stage of an enquiry, trial or pr....
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....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 a witness. 35. The judgment of the Apex Court in case Radhey Shyam Garg vs. Naresh Kumar Gupta; 2009 (3) JCC (NI) 204 is relevant, which is reproduced as under:- "13. Examination in terms of the provisions of the Indian Evidence Act envisages examination in chief, cross-examination and re-examination, as would appear from Sections 137 and 138 thereof. A person whose evidence has been taken by way of an examination in chief by way of affidavit, keeping in view the statutory scheme noticed both in the Code of Civil Procedure as also in the Code of Criminal Procedure, there cannot be any doubt whatsoever that a person intends to summon a witness who had filed his affidavit would be only for the purpose of his cross-examination." 36. 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. 37. In the present case the dismissal of the application moved by the petitioner No.1 under Section 145 (2) NI Act as well as....