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TMI Blog2022 (9) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... conclude the trial and decide the case. Petition disposed off. - CRL. M.C. 2385/2022 - - - Dated:- 30-8-2022 - HON'BLE MS. JUSTICE SWARANA KANTA SHARMA Petitioner Through: Mr. Adit S. Pujari and Ms. Aparajita Sinha, Advocates Respondents Through: Mr. Naveen Pandey, Advocate for R-1 and 2. O R D E R CRL. M.C. 2385/2022 CRL.M.A. 10072/2022 (interim relief) 1. Through the present petition, the petitioner seeks quashing the impugned order dated 03.03.2022 passed by the learned Metropolitan Magistrate ( MM ), Negotiable Instruments Act ( NI Act ) Saket District Court (South District) in Complaint Case (CC) No. 13445/2017 (Aruna Gupta v. Concept Horizon Infra. Pvt Limited Ors) and all proceeding emanating therefrom. 2. The background facts leading to the present case are that respondent No.1 filed a complaint under Section 138 read with Sections 141 and 142 of NI Act against the petitioner herein, i.e., Jeevesh Sabharwal, Mr. Suninder Sandha, Concept Horizon Infra Pvt. Ltd. ( CHIPL ), one Mr. Nitant Verma (also a Director of CHIPL) and M/s Karvy Private Wealth on 23.11.2017. It is stated in the complaint that CHIPL had approached responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the petitioner, CHIPL as well as their customers at the time of signing the MOU, for which he and CHIPL took immediate criminal as well as civil legal remedies. Thus, the petitioner wanted to adduce the necessary documentary and oral evidence to establish their defence, and also sought an opportunity to cross-examine her (respondent no. 1 herein). 5. It is stated that by an order dated 9.10.2021 while allowing the Petitioner s application under Section 145 (2) of NI Act, the learned MM took the view that given the nature of the accusation made by the complainant and the defence taken by the accused, it would be undesirable that the accused shall be tried summarily and since the Court has already allowed recalling of the complainant for the purpose of cross-examination by the accused, therefore, the case shall now be proceeded as a summons trial in accordance with the second proviso to Section 143 (1) of the NI Act. The learned MM directed the matter to be listed for cross-examination of the complainant on 06.01.2022 on which date the matter was put up for the same purpose on 03.03.2022 as the proceedings were being conducted through Video Conferencing ( VC ). 6. On the next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.2022, the matter was adjourned to 29.07.2022 for non-appearance of learned counsel for the Petitioner. On 29.07.220 notice was accepted by learned counsel for the respondents who sought time to file reply and the matter was adjourned for today, i.e., 29.08.2022. 11. In reply to the present petition, it is stated that respondent No.1 aged about 74 years, is suffering from Severe Rheumatoid Arthritis with Spinal Scoliosis due to which she is unable to personally attend to her cases pending adjudication before various Courts. It is further stated that she executed SPA dated 02.03.2022 in favour of her son, Mr. Amit Gupta (respondent no. 2 herein) as he is also a joint applicant/allottee in the cases. He is, therefore, well acquainted with the transactions as well as the facts and circumstances of the cases. It is further stated that the said MOU dated 22.07.2015 bears the name of both the respondents and they were the joint allottees in the project of CHIPL. It is evident that respondent no. 2 herein is also fully award of the transaction with CHIPL. Respondent No.1 has also filed copies of emails along with the reply to show that respondent no. 2 has been an active participan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced by learned counsel for the Petitioner on the decision of the Madras High Court in Mrs. Pankajam Ramaswamy v. Mrs. Elangovan 2009 SCC Online Mad 1332 wherein the Court observed that the Complainant had undergone knee replacement surgery on both legs and had sought for appointment of a Commission to examine her as a witness and directed that where respondent no. 1 resides in the territorial jurisdiction of the learned MM s court and as such the learned MM and accused persons may themselves go to the residence of respondent no. 1 for the purpose of recording her evidence. 17. On the other hand learned counsel for the respondents submits that respondent no. 1 is a senior citizen lady and is suffering from severe rheumatoid arthritis with spinal scoliosis. She is unable to attend her cases before the various courts. He further submits that her son/respondent no. 2 is fully conversant with the facts of the present case as the said MOU bears the name of both the respondents and they were the joint allottees in the project of CHIPL. Learned counsel replied to the submissions of learned counsel as regards the medical documents and stated that such information had not been broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttending the Court for any other reason. In such cases, the Court has to exercise its power to examine the witness to see that no such miscarriage of justice does takes place. 21. It is seen that where it is not possible for a witness to attend the Court, the procedure contemplated is under Section 284 CrPC to examine the witness by the Court Commissioner. For this purpose, Section 284 CrPC reads as under: 284. When attendance of witness may be dispensed with and commission issued.- (1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter: Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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