Delhi District Court
M/S Hvac Systems Pvt. Ltd vs M/S Caryaire Equipments India Pvt. Ltd on 17 October, 2015
IN THE COURT OF SH. A. K. KUHAR, SPECIAL JUDGE;
NDPS SOUTH DISTRICT, SAKET
Criminal Revision No. 09/2015
Unique ID NO. 02406R0246642015
M/s HVAC Systems Pvt. Ltd. ..........revisionist no. 1
No. 145, II Main 1,
"B" Cross, II Stage Domlur,
Bangalore560071
through Managing Director
Mrs. S. Kunjitha Mala
Ms. Kunjitha Mala ..........revisionist no. 2
Managing Director
M/s HVAC System Pvt. Ltd.
r/o 2667, 18th Main,
4th Cross, HAL 2nd Stage,
Indiranagar,
Bangalore560008
v e r s u s
M/s Caryaire Equipments India Pvt. Ltd. ..........respondent no. 1
L48/B, Malviya Nagar,
New Delhi 110017
through Managing Director
Sh. Anil Maheshwari
CR No. 09/2015 1/12
HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd.
L. Vivekananda ..........respondent no. 2
Director,
r/o No. 73, First Cross, Third Main,
Defence Colony, Bangalore38
Date of institution : 06th August, 2015
Arguments concluded on : 14th October 2015
Order announced on : 17th October 2015
O R D E R
1. By this order, I shall dispose of criminal revision petition filed by the petitioners against the impugned order dated 10.07.2015 in Complaint case no 116/13 whereby an application u/s 91 Cr. PC moved by the petitioners, who are accused no. 1 and 2 respectively in the criminal complaint u/s 138 Negotiable Instruments Act, was dismissed. 2 Notice of the revision petition was issued to the respondent no. 1M/s Caryaire Equipments India Pvt Ltd., complainant in the criminal complaint and to L. Vivekanandarespondent no. 2 , who is accused no. 3 in the criminal complaint.
3. Learned counsel appearing for respondent no.
1/complainant has filed objection cum written submission to the petition. Respondent no 2/accused no. 3 has not filed any reply or written CR No. 09/2015 2/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. submissions on the record. Learned counsel for the revisionist has also filed written submissions.
4. Before considering the grounds of challenge to the impugned order dated 10.07.2015, brief background of the case may be noted.
5. A criminal complaint u/s 138 Negotiable Instruments Act (hereinafter referred as NI Act) has been filed by M/s Caryaire Equipments India Pvt. Ltd. (complainant/respondent no. 1). This complaint pertains to the cheques bearing no. 187859 dated 10.06.2005 for a sum of Rs. 15 lacs drawn on State Bank of Mysore and cheque bearing no. 187860 dated 10.06.2005 for a sum of Rs. 15 lacs drawn on State Bank of Mysore. These cheques were issued under the signatures of the petitioner no. 2 herein on behalf of the petitioner no. 1 (accused no. 1). As per the allegations M/s HVAC Systems India Pvt ltd. (petitioner no. 1/accused no. 1) purchased grills, dampers and other necessary parts for installing air treatment unit in the financial year 20042005 from the complainant/respondent no. 1. In discharge of the liability arising out of this transaction, the above said cheques were issued. Admittedly, these cheques have been dishonoured. A notice demanding the cheque amount was issued. However, the payment was not made. Hence, the criminal complaint u/s 138 NI Act was filed against the petitioners no. 1 CR No. 09/2015 3/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. and 2 (accused no. 1 and accused no. 2) and also against respondent no. 2, being Director of accused no. 1 (accused no. 3). The revisionists were served with a Notice u/s 251 Cr. PC to which they had pleaded not guilty and claimed that the cheques were issued as a security for a future transaction.
6. The revisionist no. 2 (accused no. 2) had filed an affidavit before Trial Court stating that M/s HVAC Systems Pvt. Ltd. (revisionist no. 1) was having a direct business as well as commission based business with complainant M/s Caryaire Equipments India Pvt. Ltd. (respondent no. 1). In Commission based business, the revisionist no. 1 sometimes used to issue Purchase Order to respondent no. 1 on behalf of its clients. With regard to the transaction in question, the revisionist (accused no.1) had taken a defence that M/s Subramany Construction & Development Company (hereinafter referred as SCDC) was a client of revisionist (accused no. 1). In the year 2004, SCDC had approached revisionist (accused no. 1) to help them enter into a contract for supply of air handling units, grills, diffusers etc., with the complainant (respondent no. 1) for their project. The revisionist (accused no. 1) negotiated the price with the complainant (respondent no. 1) and successfully got the contract for SCDC. On the request of SCDC, revisionist (accused no. 1) placed Purchase Orders dated 09.06.2004; 19.06.2004 and 24.06.2004 CR No. 09/2015 4/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. to the complainant (respondent no. 1) on behalf of SCDC.
7. Case of the revisionist (accused no. 1) is that the liability to make payment and issue of CForm for the supply of material for these Purchase Orders was of SCDC. The revisionist (accused no. 1) had no liability as such. The revisionist (accused no. 1) has also stated in the affidavit that respondent no. 2 (accused no. 3) is now in collusion with the complainant (accused no. 1) to fasten the liability of the dishonour of the cheques on the petitioners. As per the case of revisionist, the respondent no. 3 (accused no. 3) had sent an offer vide letter dated 30.06.2004, to complainant (respondent no. 1) for making payment and issue of CForm on behalf of M/s SCDC for their Purchase Orders. However, later vide letter dt. 02.07.2004, respondent no. 3 (accused no. 3) revoked the earlier letter dated 30.06.2004 and confirmed to complainant (respondent no. 1) that M/s SCDC would issue CForm and make payment directly to complainant (respondent no. 1) with regard to cheques in question, Revisionist claim that these cheques were issued to complainant in advance as security for supply of material at HP site for Purchase Orders placed between 19.05.2005 to 25.06.2005 for delivery of material to its client at HP Site. But when the complainant (respondent no. 1) refused to supply the material at HP Site and unilaterally terminated the business with revisionist, the revisionist (accused no. 1) requisited the complainant CR No. 09/2015 5/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. to return back those cheques. However, the complainant (respondent) with ulterior and malicious motive presented cheque in question for encashment. With this defence, the revisionists are contesting the complaint. The revisionist no. 2 also examined herself as Defence witness under Section 315 Cr. PC.
8. The trial has come to an end. Learned Metropolitan Magistrate has listed the matter for final arguments on 14.08.2015. The application u/s 91 Cr. PC was moved on 09.02.2015 after the examination and cross examination of DW1. Thereafter, DW2 was examined and crossexamined. The application u/s 91 Cr. PC has been dismissed by Learned Metropolitan Magistrate by a reasoned order on 10.07.2015. Learned Metropolitan Magistrate has dismissed the application u/s 91 Cr. PC for summoning of documents and seeking examination of new witness by the revisionists (accused) on the grounds that the evidence and documents sought to be summoned were in the knowledge of the revisionist since beginning and application has been filed at a very belated stage without any justified cause being shown for the delay. Learned Metropolitan Magistrate has dealt with all the documents sought to be summoned and their relevancy to the case. Moreover, it has specifically observed that some of the documents are being sought to be summoned to conduct a roving inquiry with regard to M/s SCDC, M/s VK CR No. 09/2015 6/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. HVAC Systems and M/s HP India Sales Pvt. Ltd.
9. The legality of this order has been challenged in the present revision petition.
10. Learned counsel for the revisionists has submitted that Trial Court has considered the relevancy or irrelevancy of the documents sought by the revisionist, but has ignored facts of the case. It is also stated that Trial Court had allowed the examination of CW1 in the absence of revisionist (accused no. 2). It is also submitted that Trial Court failed to appreciate the fact that there was change of counsel for the revisionist in the year 2013. Learned counsel has filed written submissions (running into 13 pages) which contains the averments which in fact are to be considered by the Trial Court while deciding the matter. In the entire written submission, there is not an iota of suggestion of the grounds why the revisionists (accused no. 1 and accused no. 2) have been so lethargic in seeking the production of documents and summoning of witnesses during the trial.
11. The Learned counsel for the revisionists have also made a reference to an order of Hon'ble High Court dated 20.03.2015. Copy of which is annexure R3. This order was passed in Criminal MC no. 1109/2015, copy of this petition is also filed as annexure R2. In the written synopsis, submitted by the revisionists, it is stated that the CR No. 09/2015 7/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. petitioner had approached Hon'ble High Court for raising plea as to how they were prevented from participating in the trial during the evidence of complainant (respondent no. 1) and how the evidence of respondent no. 1 was conducted in their absence and how the petitioners could not lead their evidence properly. It is submitted in the synopsis further that Hon'ble High Court was pleased to grant liberty to the petitioners to raise their plea before the Trial Court, although, the petition, which sought quashing of complaint, was dismissed.
12. I have cursory glance at the contents of the above mentioned petition filed by Hon'ble High Court. In the very first paragraph there is a reference to the Trial Court orders dated 01.11.2011; 05.11.2012; 26.11.2012 and 24.01.2013. These orders have been challenged on the ground that Trial Court failed to record reason about the urgency for recording of respondent's evidence in the absence of petitioner.
13. I have gone through the Trial Court Record and the order sheets. In the order sheet dated 01.11.2011, it is noticed that CW1 was partly cross examined by accused no.1 and accused no. 2 (petitioners herein). On 05.11.2012, an application for exemption of accused no. 1 and accused no. 2 was moved by their counsel, which was allowed. No further proceeding is shown on that day except that AR of the complainant had filed some documents. On 26.11.2012, an application for CR No. 09/2015 8/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. exemption of accused no. 1 and accused no. 2 was moved and it was allowed and CW1 was further cross examined by their counsel Sh. S. K. Chaudhary. On 24.01.2013 again CW1 was cross examined by accused no. 3 (respondent no.2 herein). The Learned Trial Court granted the exemption from personal appearance to the revisionist (accused) and permitted their counsel to cross examine the witness. The counsel for the revisionist did not take any objection to the examination of witness at that stage, but lateron, the revisionists started finding fault with the order of Learned Metropolitan Magistrate. This shows the conduct of the revisionists that they intend to further prolong the trial. Hon'ble High Court in the order dated 20.03.2015 gave the liberty to raise all the plea before the Trial Court at the final hearing and dismissed the petition for quashing of criminal complaint.
14. It was argued that Trial Court did not give any opportunity to revisionists to explain the delay caused. The submissions made by Learned counsel are vague and devoid of any relevance. Reference to petition before Hon'ble High Court is also out of context so far as the present petition is concerned. Trial Court record show that ample opportunity has been given for cross examination of witness of complainant. The revisionists have been given sufficient opportunities to lead evidence in defence. The revisionist sought exemption from CR No. 09/2015 9/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. personal appearance, which was allowed and witness of complainant was tendered for cross examination. The Learned counsel for revisionist (accused) cross examined the witness. There is no illegality or irregularity in this procedure. Therefore, the submission that evidence of respondent (complainant) was led in absence of revisionist (accused), is baseless.
15. Though, the power to summon record or direction for production of document under Section 91 Cr. PC can be exercised at any stage, but Court is not bound to issue such direction at mere asking of any party. Court has to see the relevancy of documents and justification for exercise of this discretion at belated stage.
16. Impugned order dated 10.07.2015 is very detailed and exhaustive dealing with all the documents and the witnesses whom the revisionists wanted to summon and examine. Learned Metropolitan Magistrate has duly considered the relevancy of those documents and specifically observed that revisionists intend to make roving inquiry in the documents of the complainant and other companies.
17. Learned counsel for the petitioner could not point out any illegality or irregularity in the impugned order. The revisionists (accused) cannot be now permitted to summon documents which complainant (respondent) should have filed and proved on record. Learned Metropolitan Magistrate rightly observed that in case the complainant CR No. 09/2015 10/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd. (respondent no. 1) has not filed certain documents to prove its case, it will suffer the consequence accordingly. The revisionist intended to summon accounts statement; income tax returns and other details of transaction of M/s V. K. HVAC ltd, M/s SCDC and M/s HP Sales Ltd. and complainant to ascertain if payment of the Purchase Order issued by revisionists have been made or not. Such an enquiry without any specific defence, is not justified.
18. I have considered all the facts and circumstances of the case and have gone through the Trial Court Record. The Trial Court record reflected that criminal complaint is pending for the last 10 years. Of course, the notice was served in the year 2011 but still it has taken four years to come to the final stage of arguments. Considering the crux of the dispute between the parties with regard to the dishonour of the cheques in question, moving an application u/s 91 Cr. PC to summon voluminous record from different sources and the witnesses is nothing but an act to further delay the disposal of the case. The impugned order dated 10.07.2015 does not suffer from any infirmity, illegality and is found to be apt and accurate in the circumstances. The revision petition stands, therefore, dismissed.
19. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this order for its perusal. CR No. 09/2015 11/12 HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd.
20. Revision file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Ajay Kumar Kuhar)
open Court on Special Judge (NDPS)
17 October 2015)
th
South District: Saket
CR No. 09/2015 12/12
HVAC Systems Pvt. Ltd. vs Caryaire Equipment (I) Pvt. Ltd.