Monika vs Usha Shrivastava

Court
Delhi High Court

$~54
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 03.11.2026
# CNR No. DLHC010529312026
+ CRL.M.C. 8226/2026, CRL.M.A. 34499/2026 & CRL.M.A.
34500/2026

MONIKA .....Petitioner
Through: Mr. Soumava Karmakar, Ms. Jyoti
Bajaj, Mr. Daksh Sharma, Advocates

versus

USHA SHRIVASTAVA .....Respondent
Through: None






CORAM: JUSTICE GIRISH KATHPALIA

(ORAL)


J U D G M E N T
1. Petitioner/accused assails order of the learned trial magistrate,
whereby in proceedings under Section 138 Negotiable Instruments Act, an
application filed on behalf of petitioner under Section 348 BNSS for recall
of the already cross-examined complainant ( respondent herein ) for further
cross-examination was dismissed.
2. The relevant factual matrix culled out of the petition is as follows.


CRL.M.C. 8226/2026 Page 1 of 6 pages
GIRISH
KATHPALIA
Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d43
5f97626cacca, ou=HIGH COURT OF DELHI,CID - 7047638,
postalCode=110003, st=Delhi,
serialNumber=d3e86796451ec45c07b5d15570996b40f80cbd2eee60
402c487965ff801e26fa, cn=GIRISH KATHPALIA
Date: 2026.11.03 17:19:33 +05'30'
Signature Not Verified
Digitally Signed
By:RAHUL YADAV
Signing Date:03.11.2026
17:23:11

Notice under Section 251 CrPC was framed on 01.04.2022, to which the
petitioner/accused pleaded not guilty and the matter was posted to
24.09.2022 for complainant’s evidence. The order dated 24.09.2022 has not
been filed. As per record, on 01.06.2023, the complainant was chief-
examined and partly cross-examined, after which further cross-examination
was deferred at request of learned counsel for petitioner/accused and the
matter was posted to 05.10.2023. The order dated 05.10.2023 also has not
been filed. Further, as per record, on 30.09.2024 the petitioner/accused was
granted another opportunity to cross-examine the complainant on
14.02.2025. On 14.02.2025, matter was adjourned on account of illness of
counsel for the petitioner/accused, making it clear that on next date
22.05.2025 the petitioner/accused shall have last opportunity to conclude
cross-examination of the complainant. On 22.05.2025, the complainant was
further partly cross-examined till lunch time, and for further cross-
examination, adjournment application was filed on behalf of
petitioner/accused on the ground that he had to appear in post lunch session
in Tis Hazari Courts, so the matter was adjourned to 19.07.2025. On
19.07.2025, on account of heavy board of the learned trial court, matter was
posted to 14.10.2025 for further cross-examination of the complainant. On
14.10.2025, the complainant was further cross-examined till lunch time and
since counsel for petitioner/accused was not available after lunch at request
of learned counsel for petitioner/accused, last and final opportunity was
granted to conclude cross-examination on 12.01.2026. On 12.01.2026, none


CRL.M.C. 8226/2026 Page 2 of 6 pages
GIRISH
KATHPALIA
Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb
4835d435f97626cacca, ou=HIGH COURT OF DELHI,CID -
7047638, postalCode=110003, st=Delhi,
serialNumber=d3e86796451ec45c07b5d15570996b40f80cb
d2eee60402c487965ff801e26fa, cn=GIRISH KATHPALIA
Date: 2026.11.03 17:19:18 +05'30'
Signature Not Verified
Digitally Signed
By:RAHUL YADAV
Signing Date:03.11.2026
17:23:11

appeared on behalf of the petitioner/accused, so the learned trial court closed
further cross-examination of the complainant and posted the matter to
20.02.2026 to record statement of accused. Subsequent to that adjournment,
on 12.01.2026, at 11:15am, when a proxy counsel for complainant was
present, the learned trial court took up an exemption application filed on
behalf of the petitioner/accused, which was allowed and exemption for that
day was granted to the petitioner/accused. Thereafter, the petitioner/accused
filed an application under Section 348 BNSS seeking to recall the
complainant for further cross-examination. That application was dismissed
by way of detailed order impugned herein.
3. At the outset, learned counsel is requested to address on
maintainability of this petition in the light of bar under Section 438(2) BNSS
and the scope of inherent powers of the High Court.
4. Learned counsel for petitioner/accused does not dispute that dismissal
of an application under Section 348 BNSS, being an interlocutory order
cannot be assailed by invoking revisional jurisdiction under Section 438
BNSS on account of bar created by Section 438(2) BNSS. It is also not
disputed that what is explicitly prohibited by law, cannot be given a
backdoor entry by invoking inherent powers unless it is a case of gross
injustice.
5. The gross injustice in the present case, according to learned counsel
for petitioner/accused, is that on 12.01.2026, the learned trial court “should


CRL.M.C. 8226/2026 Page 3 of 6 pages
GIRISH
KATHPALIA
Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835
d435f97626cacca, ou=HIGH COURT OF DELHI,CID - 7047638,
postalCode=110003, st=Delhi,
serialNumber=d3e86796451ec45c07b5d15570996b40f80cbd2ee
e60402c487965ff801e26fa, cn=GIRISH KATHPALIA
Date: 2026.11.03 17:19:04 +05'30'
Signature Not Verified
Digitally Signed
By:RAHUL YADAV
Signing Date:03.11.2026
17:23:11

not have closed the right to cross-examine” the complainant in the very first
call as the counsel for the petitioner/accused “intended” to take a passover.
There is no other submission in support of the contention that the impugned
order led to gross injustice.
6. It is trite that an order dismissing an application under Section 348
BNSS ( earlier Section 311 CrPC ) is an interlocutory order and that being
so, it is not amenable to scrutiny under revisional jurisdiction of the Court of
Sessions or even this Court in view of bar created by Section 438(2) BNSS.
It is equally trite that what is explicitly prohibited by law cannot be granted
a backdoor entry by invoking inherent powers, unless it is a case of gross
injustice. Reference in this regard can be made to the judgments in the cases
titled Ram Swaroop Gupta & Ors vs State NCT of Delhi & Anr. ,
2026:DHC:514 and Exclusive Capital Limited vs State Govt of NCT Delhi
& Ors , 2026:DHC:6742.
7. In view of the above mentioned legal position, what is to be seen is as
to whether it is a case of gross injustice meted out to the petitioner that can
justify this Court to invoke inherent powers against dismissal of application
under Section 348 BNSS.
8. To begin with, it is not a case where the cross-examination was
completely denied to the accused. It is also not a case where the accused was
directed to cross-examine the prosecution witness in the absence of any legal
assistance. It is also not a case where the entire cross-examination was


CRL.M.C. 8226/2026 Page 4 of 6 pages
GIRISH
KATHPALIA
Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6fb4835d4
35f97626cacca, ou=HIGH COURT OF DELHI,CID - 7047638,
postalCode=110003, st=Delhi,
serialNumber=d3e86796451ec45c07b5d15570996b40f80cbd2eee6
0402c487965ff801e26fa, cn=GIRISH KATHPALIA
Date: 2026.11.03 17:18:50 +05'30'
Signature Not Verified
Digitally Signed
By:RAHUL YADAV
Signing Date:03.11.2026
17:23:11

directed to be concluded in haste. As described above, the complainant was
cross-examined at length on a number of dates of hearing by counsel for the
petitioner/accused. It is also not a situation where the counsel for the
petitioner/accused was denied any accommodation by the trial court; as
mentioned above, the learned trial court repeatedly adjourned the matter on
request of the defence counsel so that the petitioner/accused could get
maximum possible opportunity to conclude the cross-examination.
Significantly, the learned counsel for petitioner/accused is husband of the
petitioner/accused.
9. So far as the default in appearance of the petitioner/accused and her
counsel on 12.01.2026 is concerned, till date, there is no satisfactory
explanation. Even today, what is submitted by learned counsel for
petitioner/accused is that he intended to take passover. As repeatedly held,
passovers and adjournments are matter of courtesy extended by the Court to
the counsel and the same are not right of the counsel. As described above,
from 01.06.2023 till 12.01.2026, the complainant/respondent remained in
the witness box. On 12.01.2026, neither the petitioner/accused nor even any
proxy counsel appeared before the trial court to seek passover. That being
so, there was no reason for the trial court to expect that counsel for
petitioner/accused would seek a passover and keep waiting further.
10. What to say of gross injustice meted out to the petitioner/accused, it
appears that the petitioner/accused was trying her level best to protract the


CRL.M.C. 8226/2026 Page 5 of 6 pages
GIRISH
KATHPALIA
Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI,
2.5.4.20=8401dd889b27a77b2f65ffffe4afec45569af3962c6
fb4835d435f97626cacca, ou=HIGH COURT OF DELHI,CID -
7047638, postalCode=110003, st=Delhi,
serialNumber=d3e86796451ec45c07b5d15570996b40f80
cbd2eee60402c487965ff801e26fa, cn=GIRISH KATHPALIA
Date: 2026.11.03 17:18:38 +05'30'
Signature Not Verified
Digitally Signed
By:RAHUL YADAV
Signing Date:03.11.2026
17:23:11

trial so that the respondent/complainant gets frustrated and gives up. In view
of the aforesaid, I find the present petition not just devoid of merits but
completely frivolous, so it is dismissed with cost of Rs. 10,000/- to be
deposited within one week by the petitioner/accused online with
www.bharatkeveer.gov.in. Accompanying applications also stand disposed
of. Copy of this order be sent to the learned trial court.

Digitally signed by GIRISH KATHPALIA
DN: c=IN, o=HIGH COURT OF DELHI,
2.5.4.20=8401dd889b27a77b2f65ffffe4afe
c45569af3962c6fb4835d435f97626cacca,
ou=HIGH COURT OF DELHI,CID - 7047638,
postalCode=110003, st=Delhi,
serialNumber=d3e86796451ec45c07b5d1
5570996b40f80cbd2eee60402c487965ff80
1e26fa, cn=GIRISH KATHPALIA
Date: 2026.11.03 17:18:21 +05'30'
GIRISH
KATHPALIA

GIRISH KATHPALIA
(JUDGE)
NOVEMBER 3, 2026/ as


CRL.M.C. 8226/2026 Page 6 of 6 pages
Signature Not Verified
Digitally Signed
By:RAHUL YADAV
Signing Date:03.11.2026
17:23:11