IN THE COURT OF XXXXXX; LD.ASJ-3; TIS HAZARI COURTS; DELHI

CRL. REVISION No. XX OF 20**.

IN THE MATTER OF :-

XXXXX                                                 : REVISIONISTS

VERSUS

XXXXX                                                 : RESPONDENT

COUNTER ON BEHALF OF THE RESPONDENT TO THE REVISION PETITION FILED UNDER SECTION 397 OF CR.P.C. FILED BY THE REVISIONIST.

MOST RESPECTFULLY SHOWETH :-

PRELIMINARY OBJECTIONS & SUBMISSIONS: -

1.      That the Ld. M.M. was rightly dismissed the application under Section 311 of CrPC against the revisionist in view of the facts involved in the said case and after considering the all facts and material on record.

2.      That the present petition is misconceived, malafide and is not maintainable in law because the revisionist has intentionally and deliberately concealed the material facts from this Hon’ble Court as such this petition as such is liable to be dismissed.

3.      That the petitioner is playing the hide and seek with the Court, as the complaint of the respondent pertains to the year 2014 and vide order dated 11.01.2018 the opportunity of the petitioner to cross examine the complainant was closed by the Ld. Trial Court observing that despite multiple opportunities petitioner has failed to cross examine the complainant and after several efforts were made by the respondent for petitioner summoning as the petitioner was evading the service.

4.      That the petitioner first time took the bail, after two years from the institution of complaint case, it is further submitted that after taking the bail in Feb. 2016 matter was posted for filing of application under Section 145(2) N.I. Act and framing of notice.

5.      That thereafter the Ld. Trial Court given the several dates for i.e. 22.05.2016, 14.09.2016, 16.01.2017, 04.03.2017, 13.07.2017, 31.10.2017, 11.01.2018 to the petitioner but the petitioner deliberately did not file the application under Section 145(2) of N.I. Act and they were also not present on several dates. Therefore the Ld. Trial Court closed the right to cross examine the complainant / respondent.

6.      That on 20.02.2018 the counsel for the revisionists filed an application under Section 311 CrPC before the Ld. Trial Court and same was dismissed by the Ld. Trial Court vide order dated 02.08.2018.

7.      That from the beginning of the case, only purpose of the petitioner is to delay the matter as long as possible. The complaint of the respondent is already 4 years old and the respondent is a senior citizen aged 72 years, which is also mentioned by the Ld. Trial Court in the order dated 02.08.2018. The petitioner moved the application under Section 311 CrPC only further delaying the case. Therefore, the present revision is nothing but abuse of process of law, hence is liable to be dismissed on this ground alone.

8.      That the present revision petition is nothing but time gaining tactics adopted by the petitioner, hence, the petitioner is attempting to delay the trial.

REPLY ON MERITS :-

That at the very outset it is submitted that each and every para of the petition is denied except in so far as specifically admitted herein below in the parawise reply.

1.      That the contents of para 1 of the petition are matter of record. Reference may be craved to the preceding paragraphs of preliminary objections as the same is not repeated for the sake of brevity.

2A-C.        That the contents of paras A-C of the brief facts are matter of record, need no reply.

REPLY TO GROUNDS:-

That the averments made in Grounds of the petition are misconceived, incorrect and are denied. The submissions made hereinabove are respectfully reiterated. It is submitted that the present petition with malafide intentions and to linger on the issue of the case has filed this present petition raising false pleas. It is further submitted that the grounds which has been raised in this present petition are after thought and false and frivolous.

A.     That the contents of para A of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that impugned judgment dated 02.08.2018 passed by the Ld. Trial Court is absolutely wrong and against the law and contrary to the facts available on record.

B.     That the contents of para B of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the impugned judgment passed by the Ld. Trial Court on the surmises and conjectures and the same is liable to be set aside.

C.     That the contents of para C of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that impugned judgment suffers from gross irregularities and is perverse of the material on record.

D.     That the contents of para D of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that impugned judgment has been made by the Ld. Trial Court on a wrong footing of law and fact.

E.     That the contents of para E of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court has further erred in law in not appreciating that there has been no intentional or deliberate failure on the part of the counsel for the appellant to cross examine the complainant witness, rather the same as result of unavoidable circumstances.

F.     That the contents of para F of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that Ld. Trial Court has failed to appreciate that on 31.10.2017 the counsel for the petitioner was unable to appear before the Ld. Trial Court due to some personal difficulty and on 01.08.2018 when the matter was listed for cross examination of the complainant as last opportunity, again the counsel for the complainant who had come to the court on that day, started felling unwell and had even get himself examined by the Duty Doctor present in the Dispensary situated within the court complex which is clear from the document. It is further denied that the counsel on that day was suffering from vomiting and abdominal pain and in these circumstances was unable to appear before the Ld. Trial Court and thus the non appearance of the counsel for the appellant on that day was absolutely unintentional.

G.     That the contents of para G of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court has erred in law in observing that despite multiple opportunities, the appellant has failed to examine the respondent, clearly overlooking the fact that on 31.10.2017 there was some personal difficulty to the counsel for the appellant and on 11.01.2018, the counsel had fallen ill suddenly to the extent that he had to seek immediate medical intervention and had to leave for his house owing to the uneasiness and uncomfort which he was in thus there was sufficient and justified reasons praying adjournment for the same dates.

H.     That the contents of para H of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court has failed to appreciate that on 16.01.2017 when the matter was fixed for cross examination for the first time, the judicial file was not traceable and the complainant himself was not present and for that adjournment no fault can be found with the conduct of the appellant.

I.      That the contents of para I of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court has further failed to appreciate that in essence, the appellant has sought only one date i.e. on 04.03.2017 and due to the wrong noting of the date, the appellant could not appear on 13.07.2017 as he wrongly noted down the date 25.07.2017 and thus the observation of the Ld. Trial Court that multiple opportunism were availed by the appellant, is erroneous.

J.      That the contents of para J of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court has failed to appreciate that the circumstances under which the right to cross examination came to be closed, has been duly explained in the application under Section 311 CrPC and opportunity to cross examination ought to have been accorded to the appellant.

K.     That the contents of para K of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court has erred in observing the conduct of the respondent as from the order sheets, it is apparent that most of the time the complainant himself had not appeared before the Ld. Trial Court even on the first date i.e. 16.01.2017 when the matter was fixed for cross examination of the complainant.

L.      That the contents of para L of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court has failed to appreciate that the counsel for the appellant was not well when the cross examination of the complainant was closed vide order dated 11.01.2018 as from the treatment card, it is clear that the counsel was not only 11.01.2018 visited to the doctor but also went to the doctor on 15.01.2018 for his treatment which shows that the counsel was not well during that period.

M.     That the contents of para M of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court failed to appreciate that the cross examination of the complainant could not commence however, Ld. Trial Court observed that the application was moved with intention to fill up the lacuna in the trial whereas the trial had not commenced as the witness was not asked even a single question.

N.     That the contents of para N of the grounds of revision are absolutely wrong and incorrect hence, specifically denied. It is denied that the Ld. Trial Court failed to appreciate that the fact respondent is the essential and vital witness and it is necessary for the petitioner to cross examine the complainant to prove their defence and if the petitioner and not allowed for cross examine of CW1 a great injustice would be caused to the petitioner which cannot be compensated in terms of money.

O.     That the contents of para O of the grounds of revision are absolutely wrong and incorrect hence, specifically denied.

4.      That the contents of para 4 of the revision are absolutely wrong and incorrect hence, specifically denied.

5.      That by the present counter the respondent is challenging the maintainability of the present revision and the contents of the present revision are denied in their entirety.

6.      In view of the above revisionist has utterly failed to make out any case against the respondent in the present appeal and as such the present petition is liable to be rejected.

         Prayer clause para along with its sub paras are specifically wrong and denied. However, it is submitted that the revisionist is not entitle for any relief claimed for.

P R A Y E R

         It is, therefore, most respectfully prayed that the petition of the revisionist may kindly be dismissed with heavy costs in favour of the respondent and against the revisionist for dragging the respondent in the frivolous litigation, in the interest of justice, equity and circumstances of the case.

Pass such further order or orders as this Hon’ble Court may deem fit and proper of the facts and circumstances of the case, in the interest of justice.

DELHI                                                           RESPONDENT

THROUGH

DATED.          

               XXXXXX

ADVOCATE

XXXXXX

XXXXXX

IN THE COURT OF XXXXXX; LD.ASJ-3; TIS HAZARI COURTS; DELHI

CRL. REVISION No. XX OF 20**.

IN THE MATTER OF :-

XXXXX                                                 : REVISIONISTS

VERSUS

XXXXX                                                 : RESPONDENT

AFFIDAVIT

Affidavit of XXXXX aged about 72 years, Proprietor XXXXX, do hereby solemnly affirm and declare as under :-

1.      That I am respondent in the above noted petition, well conversant with facts of the case and am competent to swear this affidavit.

2.      That I have gone through the accompanying counter to the revision petition under Section 397 of Cr.P.C., has been drafted by my counsel under my instructions and I say that the contents of the same are true and correct to the best of my knowledge and the legal submissions are based upon advice received and believed to be correct.

DEPONENT

VERIFICATION :-

         Verified at Delhi on this ___ day of October, 2018 that the contents of my above affidavit are true and correct to the best of my knowledge. No party thereof is false and nothing material has been concealed therefrom.

DEPONENT