Counter on behalf of respondent to criminal revision petition under Section 397 CrPC with supporting affidavit
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
0 of 38 blanks filled
IN THE COURT OF THE LEARNED ADDITIONAL SESSIONS JUDGE-03, TIS HAZARI COURTS, DELHI
Criminal Revision No. Criminal revision number of 2018
IN THE MATTER OF :-
Revisionist's name: REVISIONIST
VERSUS
Respondent's name: RESPONDENT
COUNTER ON BEHALF OF THE RESPONDENT TO THE REVISION PETITION FILED BY THE REVISIONIST UNDER SECTION 397 OF THE CODE OF CRIMINAL PROCEDURE, 1973
MOST RESPECTFULLY SHOWETH :-
PRELIMINARY OBJECTIONS & SUBMISSIONS
1.That the learned Magistrate was fully justified in dismissing the application filed under Section 311 of the Code of Criminal Procedure by the revisionist, having regard to the facts and circumstances of the case and after due consideration of all the facts and material available on record.
2.That the present petition is misconceived, mala fide and not maintainable in law, inasmuch as the revisionist has intentionally and deliberately concealed material facts from this Hon'ble Court; the present petition is, therefore, liable to be dismissed.
3.That the petitioner is playing hide and seek with the Court. The complaint of the respondent pertains to the year Year of complaint, and vide order dated Date of order closing cross-examination, the learned Trial Court closed the opportunity of the petitioner to cross-examine the complainant, observing that despite multiple opportunities, the petitioner had failed to cross-examine the complainant. The respondent had made several efforts to secure the petitioner's appearance, as the petitioner was evading service.
4.That the petitioner availed bail for the first time two years after the institution of the complaint case. It is further submitted that after the grant of bail on Date of grant of bail, the matter was posted for filing of the application under Section 145(2) of the Negotiable Instruments Act and for framing of notice.
5.That thereafter, the learned Trial Court granted several dates, i.e., Dates given for filing Section 145(2) application, to the petitioner for filing the said application; however, the petitioner deliberately did not file the application under Section 145(2) of the Negotiable Instruments Act and also remained absent on several dates. Consequently, the learned Trial Court closed the petitioner's right to cross-examine the complainant / respondent.
6.That on Date of Section 311 application, the counsel for the revisionist filed an application under Section 311 of the Code of Criminal Procedure before the learned Trial Court, and the same was dismissed by the learned Trial Court vide order dated Date of dismissal of Section 311 application.
7.That from the very inception of the case, the sole purpose of the petitioner has been to delay the matter for as long as possible. The complaint of the respondent is already four years old, and the respondent is a senior citizen aged 72 years, a fact also recorded by the learned Trial Court in its order dated Date of trial court order noting respondent's age. The petitioner moved the application under Section 311 of the Code of Criminal Procedure only with a view to further delaying the case. The present revision is, therefore, nothing but an abuse of the process of law and is liable to be dismissed on this ground alone.
8.That the present revision petition is nothing but a time-gaining tactic adopted by the petitioner, whereby the petitioner is attempting to prolong the trial.
REPLY ON MERITS
That at the very outset, it is submitted that each and every paragraph of the petition is denied, except insofar as the same is specifically admitted in the para-wise reply set out hereunder.
1.That the contents of paragraph 1 of the petition are a matter of record. Reference is invited to the preceding paragraphs of the preliminary objections, which are not repeated herein for the sake of brevity.
2A-C.That the contents of paragraphs A to C of the brief facts are a matter of record and require no reply.
REPLY TO GROUNDS
That the averments made in the grounds of the petition are misconceived, incorrect and are denied. The submissions made hereinabove are respectfully reiterated. It is submitted that the present petition has been filed with mala fide intentions and with a view to prolonging the proceedings, by raising false pleas. It is further submitted that the grounds raised in the present petition are an afterthought and are false and frivolous.
A.That the contents of paragraph A of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the impugned judgment dated Date of impugned judgment passed by the learned Trial Court is wrong, contrary to law, or contrary to the facts available on record.
B.That the contents of paragraph B of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the impugned judgment passed by the learned Trial Court is based on surmises and conjectures, or that the same is liable to be set aside.
C.That the contents of paragraph C of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the impugned judgment suffers from gross irregularities or is perverse to the material on record.
D.That the contents of paragraph D of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the impugned judgment has been rendered by the learned Trial Court on a wrong footing of law and fact.
E.That the contents of paragraph E of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the learned Trial Court erred in law in not appreciating that there was no intentional or deliberate failure on the part of the counsel for the appellant to cross-examine the complainant witness, and that the said failure was instead the result of unavoidable circumstances.
F.That the contents of paragraph F of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the learned Trial Court failed to appreciate that on Date counsel was unable to appear, the counsel for the petitioner was unable to appear before the learned Trial Court owing to some personal difficulty, and that on Date matter listed for cross-examination as last opportunity, when the matter was listed for cross-examination of the complainant as a last opportunity, the said counsel, though present in Court, was taken suddenly unwell and had even got himself examined by the Duty Doctor at the Dispensary situated within the court complex, which is evident from the record. It is further denied that the counsel was on that day suffering from vomiting and abdominal pain, and that in these circumstances he was unable to appear before the learned Trial Court, so that the non-appearance of the counsel for the appellant on that day was absolutely unintentional.
G.That the contents of paragraph G of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the learned Trial Court erred in law in observing that, despite multiple opportunities, the appellant had failed to examine the respondent, clearly overlooking the fact that on Date of counsel's personal difficulty the counsel for the appellant had some personal difficulty, and that on Date counsel fell ill the counsel had suddenly fallen ill to the extent that he required immediate medical intervention and had to leave for his house owing to the uneasiness and discomfort he was suffering; there were, therefore, sufficient and justified reasons for seeking an adjournment for those dates.
H.That the contents of paragraph H of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the learned Trial Court failed to appreciate that on Date first fixed for cross-examination, when the matter was first fixed for cross-examination, the judicial file was not traceable and the complainant himself was not present, and that for that adjournment no fault can be attributed to the conduct of the appellant.
I.That the contents of paragraph I of the grounds of revision are absolutely wrong and incorrect and are, therefore, specifically denied. It is denied that the learned Trial Court further failed to appreciate that, in essence, the appellant had sought only one adjournment, i.e., on Date sought by appellant, and that, owing to a wrong noting of the date, the appellant could not appear on Actual date of hearing, having wrongly noted down the date as Wrongly noted date; the observation of the learned Trial Court that multiple opportunities were availed by the appellant is, therefore, erroneous.
J.That the contents of para J of the grounds of revision are absolutely wrong and incorrect and are therefore specifically denied. It is denied that the Ld. Trial Court failed to appreciate that the circumstances under which the right of cross-examination came to be closed were duly explained in the application under Section 311 CrPC, and that an opportunity of cross-examination ought to have been granted to the revisionist.
K.That the contents of para K of the grounds of revision are absolutely wrong and incorrect and are therefore specifically denied. It is denied that the Ld. Trial Court erred in observing the conduct of the respondent, since from the order sheets it is apparent that the complainant himself mostly did not appear before the Ld. Trial Court, even on the first date, i.e., Date first fixed for cross-examination, when the matter was fixed for the cross-examination of the complainant.
L.That the contents of para L of the grounds of revision are absolutely wrong and incorrect and are therefore specifically denied. It is denied that the Ld. Trial Court failed to appreciate that the counsel for the revisionist was unwell when the cross-examination of the complainant was closed vide order dated Date of order closing cross-examination, since the treatment card clearly shows that the counsel not only visited the doctor on Date of first doctor visit but also again consulted the doctor on Date of second doctor visit for treatment, which shows that the counsel was unwell during that period.
M.That the contents of para M of the grounds of revision are absolutely wrong and incorrect and are therefore specifically denied. It is denied that the Ld. Trial Court failed to appreciate that the cross-examination of the complainant could not commence; rather, the Ld. Trial Court observed that the application had been moved with the intention of filling up lacunae in the trial, whereas the trial had not even commenced, as the witness had not been asked a single question.
N.That the contents of para N of the grounds of revision are absolutely wrong and incorrect and are therefore specifically denied. It is denied that the Ld. Trial Court failed to appreciate that the respondent is an essential and vital witness and that it is necessary for the revisionist to cross-examine the complainant in order to prove his defence, and that if the revisionist is not permitted to cross-examine CW1, great injustice would be caused to the revisionist 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 and are therefore specifically denied.
4.That the contents of para 4 of the revision petition are absolutely wrong and incorrect and are therefore specifically denied.
5.That by the present counter, the respondent has challenged the maintainability of the present revision petition, and the contents of the said revision petition are denied in their entirety.
6.That in view of the above, the revisionist has utterly failed to make out any case against the respondent in the present proceedings, and as such, the present petition is liable to be dismissed.
That the prayer clause, along with its sub-paragraphs, is specifically wrong and is denied. However, it is submitted that the revisionist is not entitled to any of the reliefs claimed.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly dismiss the petition of the revisionist with heavy costs in favour of the respondent and against the revisionist, for dragging the respondent into frivolous litigation, in the interest of justice, equity and in the circumstances of the case.
It is further prayed that such other and further order or orders may kindly be passed as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
Place where the respondent signsRESPONDENT
THROUGH
DATED: Date of counter
Counsel's name and signature.
ADVOCATE
IN THE COURT OF Name and designation of the court, Court complex and city
CRL. REVISION No. Criminal revision number OF Year of the criminal revision
IN THE MATTER OF:
**Revisionist's name: REVISIONIST**
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT
Affidavit of Sh. Deponent's name, aged about Deponent's age years, Proprietor of M/s. Firm name, Building or street address, Additional address detail of the deponent, Locality, Deponent's address PIN, who do hereby solemnly affirm and declare as under:
1.That I am the respondent in the above-noted petition; I am well conversant with the 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., which has been drafted by my counsel under my instructions, and I state that the contents of the same are true and correct to the best of my knowledge and belief, and the legal submissions are based upon advice received and believed to be correct.
DEPONENT
VERIFICATION:
Verified at Place of verification on this Day of verification day of Month of verification, Year of verification, that the contents of my above affidavit are true and correct to the best of my knowledge and belief; no part thereof is false and nothing material has been concealed therefrom.
DEPONENT