Delhi District Court
Revisionist vs Trans Asia Metals Llp on 16 July, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Revision No.91/18
Pritam Mantri
Director of M/s Blue Prime Aluminum Ltd.
Having its Registered Office at :
Plot No.145A, Sector59, HSIDC,
Faridabad, Haryana
. . . . Revisionist
Versus
Trans Asia Metals LLP
Having its Registered Office at :
S125, Greater KailashII,
New Delhi . . . . Respondent
Date of Institution : 07.02.2018
Date of Arguments : 09.07.2018
Date of Order : 16.07.2018
O R D E R
1. The present revision petition under Section 397 Cr.P.C has been filed for setting aside the impugned common order dated 07.11.2017 passed in Criminal Complaint Case No.614078/16 and 631955/16 titled "Trans Asia Metals LLP Vs. Pritam Mantri" and "Trans Asia Metals LLP Vs Blue Prime Aluminium (P) Ltd." respectively.
2. The brief submissions of the revisionist/petitioner are that:
CR No.91/18 Page 1 of 14a) The revisionist is a registered limited company and Pritam Mantri is its director doing the business of aluminum scrap and he had business transactions with the respondent and due to the multiple transactions between both of them frequently, the blank cheques were handed over to respondent in good faith only as the petitioner and respondent had family relationship apart from business relations.
b) The respondent already had several blank cheques of the petitioner. Security cheques and the accounts were never reconciled as per the letter of petitioner and the respondent deposited these cheques in his bank without any intimation. Accordingly, the returning of cheques in question is due to the erring act on the part of respondent.
c) The petitioner had multiple business transactions with the respondent and in the absence of reconciliation of the grounds/ledgers by respondent despite several reminders from the petitioner, the blank cheques in question had been misappropriated by the respondent by filing the complaint before the concerned courts.
d) The respondent misused the said cheques and presented the cheques in question with malafide intention and as reconciliation was yet to be done and the cheques in question were given long back in good faith and fresh cheques after reconciliation were to be issued, respondent or to have returned the old cheques to the petitioner, the respondent instead of returning the same filed criminal complaints CR No.91/18 Page 2 of 14 against the petitioner on the old security cheques.
e) Vide the impugned common order, learned trial court has dismissed the application of the revisionist for crossexamination under section 145 (2) of Negotiable Instrument Act (hereinafter referred to be as "NI Act") and the said matter is listed for defence evidence.
3. Feeling aggrieved, the present revision has been filed on the ground that petitioner was never afforded a fair opportunity for crossexamination of the respondent which ought to have been granted to him for effectively defending his case. It has also been submitted that the case was firstly registered/filed at Faridababd and then transferred back in view of judgment of Dashrath Rupsingh Rathod versus State of Maharashtra and another, in Criminal Appeal No. 2287/09 decided on 01.08.2014, and the counsel for the petitioner could not file an application for crossexamination of the respondent within time and only dates were given.
4. Revisionist has also submitted that learned trial court committed an error in holding that petitioners were unable to file their application within time thereby causing substantive loss to the petitioner and it ought to have considered that the application could not have been filed within the stipulated time as because of the change/transfer of courts, the previous counsel could not act diligently and the petitioner had to suffer.
CR No.91/18 Page 3 of 145. It has been argued on behalf of revisionist that the learned trial court passed the impugned order in mechanical order and failed to provide an opportunity to the petitioner is to put forth their defence.
6. The petitioners have submitted that the impugned order is bad in law and on facts and is therefore liable to be set aside.
7. Submissions of the respondent Detailed reply has been filed on behalf of respondent wherein the respondent has denied all the submissions made by the appellant. The respondent has submitted that:
a) The present revision petition has been filed on complete falsehood without anything or documents and contains statements which are against the record of the case and that for the first time in the present revision petition, as a clear afterthought, petitioners are trying to introduce a fresh defence to their defence by stating that the accounts were never reconciled. This point of defence was not taken in the reply to the legal notice or at the time of framing of the notice or in the affidavit in evidence or the application filed by the accused under section 145 (2) of NI Act.
b) Even the purported new defence of the amounts allegedly having not been reconciled is not sufficient for allowing the application under section 145 (2) of NI Act. The presumption operating in favour of the complainant can be rebutted by the revisionist by leading his own evidence.CR No.91/18 Page 4 of 14
c) The petitioner has concealed the material fact that the application under section 145 (2) of NI Act was moved only on 17.07.2017 when the defence evidence had begun and accused / petitioner had already been partly crossexamined by the complainant / respondent's counsel on 18.04.2017 where petitioner admitted of the cheques bearing his signatures as also the fact that these amounts were outstanding. Having realized this that there is no plausible defence available to the petitioner, Section 145 (2) of NI Act application was filed only as a tactic to delay the trial.
d) The application under section 145 (2) of NI Act has been dismissed by the impugned order both on the ground of the same having been filed at a belated stage as well as on merits. The petitioner has only assailed the order dated 07.11.2017 on the ground that his earlier counsel could not act diligently and in time and therefore the application under section 145 (2) of NI Act should not be considered as having been filed belatedly. The petitioner has not impugned the finding of the learned trial court on the merits of the application in any manner whatsoever.
e) The respondent has submitted that the present petition has been filed only to delay the proceedings of the learned trial court and deserves to be dismissed.
8. Detailed arguments were advanced by learned counsels for the parties.
CR No.91/18 Page 5 of 149. Arguments heard. Record perused.
10. It is noticed that conduct of the revisionist since the beginning has only been to delay the proceedings. The process issued against the revisionist had been returned back with report of refusal and he did not turn up before the learned trial court on 13.02.2015 and NBWs were directed to be issued against him for 27.04.2015. On the said date of hearing, the revisionist appeared and arguments were heard on notice. Learned trial court observed that from the perusal of the documents on record, a prima facie case under section 138 of NI Act was made out against the revisionist and notice of accusation was accordingly framed against him to which he pleaded not guilty and claimed trial. Plea of defence under section 263 (g) Cr.P.C. was also recorded on the same date. The matter was then adjourned for 08.07.2015 for Defence Evidence, if any, otherwise for arguments. The petitioner was directed to file list of witnesses within a week of the said date failing which defence witnesses were permitted to be produced at own responsibility of petitioner. It was also made clear that in view of the directions vide letter bearing no. 439spl.Gaz.II(14) dated 23.05.2014, issued by Hon'ble Punjab and Haryana High Court, Chandigarh, not more than three opportunities would be afforded for the purpose of evidence. These proceedings were held before the court at Faridabad.
11. Thereafter, the matter was transferred to Saket Courts, South East District and was taken up on 03.09.2016. The revisionist did CR No.91/18 Page 6 of 14 not appear on the said date and his/its employee appeared and stated that accused/revisionist was not well and on oral request, he was exempted for the said date. It was again recorded that matter on that day was listed for defence evidence. One last and final opportunity was granted to the revisionist/accused for defence evidence. On the next date of hearing, i.e. 19.10.2016, the revisionist/accused sought some time for defence evidence which was granted by learned trial court despite strong opposition by way of last and final opportunity subject to cost of ₹500/ to be paid to the complainant/ respondent by accused/revisionist. Accused/ revisionist was directed to take steps to summon the witnesses failing which witnesses would not be summoned by the court and defence evidence would be closed.
12. On the next date of hearing i.e. 16.01.2017, the revisionist again sought exemption on medical grounds, which was allowed and the matter was again adjourned for DE for 18.04.17. Thus, it is noticed that for leading DE, the revisionist/accused sought five adjournments and on none of the dates of hearing, any application under section 145 (2) of NI Act was filed by the revisionist nor any such oral prayer was made on behalf of accused/revisionist or by the accused/revisionist that he wanted to crossexamine the complainant. Thus, by no stretch of imagination it can be said or argued that accused/revisionist was not granted any opportunity to cross examine the complainant.
CR No.91/18 Page 7 of 1413. On 18.04.2017, the revisionist, Pritam Mantri, was examined and partly crossexamined as DW1 and the matter was adjourned for further cross examination of DW1 for 17.07.2017 and on 17.07.2017, again an application was filed by the accused/ revisionist seeking his personal exemption on medical ground which was again allowed subject to cost of ₹500/ and subject to accused/revisionist filing medical documents on the next date of hearing i.e. 14.08.2017. It was on this date i.e. 17.07.2017 that the revisionist/accused filed an application under section 145 (2) of NI Act. Thus, after the transfer of the case to Saket Court, the matter was taken up for sixth times for leading DE and on any date of hearing, no request was made by the accused/revisionist that he wanted to crossexamine the complainant or that he wanted to file an application under section 145 (2) of NI Act. In view of these observations, I concur with the submission of learned counsel for respondent that there is no merit in the contention of the revisionist that he was not granted any opportunity to file the said application or to crossexamine the complainant. The present application has been filed only to further delay the proceedings.
14. On perusal of cross examination of DW1 conducted on 18.04.2017, it is noticed that he had admitted that the cheques in question bear his signatures. He also admitted that his amounts are also outstanding. It was on the next date after this cross examination that the revisionist filed the application under section 145 (2) of NI Act where the revisionist has submitted that "It is CR No.91/18 Page 8 of 14 necessary to crossexamine the complainant as he has concealed material facts from this Hon'ble Court. The accused is not liable to pay any money to the complainant." which was dismissed by Learned trial court vide the impugned order.
15. The petitioner has relied on law laid down in Venu Madhava versus State of NCT of Delhi and another, CRL.M.C. 2463/2013 & CRL.M.A.No. 9529/2013, 14694/2015 where it has been held that the right of crossexamination is a statutory right which vests in a party to the proceedings..... It is not only the prerogative but the duty of the court to examine such of those witnesses as it considers absolutely necessary for doing justice... Examination in chief of a witness alone without his cross examination is incomplete statement of witness and is not evidence under the Indian Evidence Act." Relying on these observations, learned counsel for the petitioner has argued that the impugned order is bad in law. However, the said observation cannot be read in isolation and has to be read in the background of the facts of that case. It is observed that the said matter after the taking of cognizance, the petitioners were summoned on 16.11.2010 and notice under section 251 Cr.P.C. was served through the counsel of the petitioner on 17.03.2012. Thereafter, on 11.10.2012, Petitioner No. 1 through counsel moved an application under section 145 (2) NI Act read with section 311 Cr.P.C. for recall of complainant witness for crossexamination which was dismissed by the learned trial court. However, in the case before learned trial court after the framing of notice, the matter had CR No.91/18 Page 9 of 14 been adjourned repeatedly at times in presence of accused/petitioner and at times in his absence and on no dates of hearing, the petitioner/revisionist filed any application under section 145 (2) NI Act nor made any oral request for granting of opportunity to crossexamine the complainant. The application had been filed when defence evidence had already commenced. The revisionist had already tendered his affidavit of evidence and had admitted that the cheques in question bear his signatures. He also admitted that his amounts are also outstanding. Thus, in the facts of the case, the law laid down in the aforesaid judgment does not apply and for the same reasons the observations made of the coordinate benches in Suresh Chand Kuntal vs. Ravinder Singh, CR. No. 219/2014, 236/2014 and 237/2014, Abhilash Kumar Jha versus Hari Prasad Singh, CR no. 129/2017, Ashok Jain versus Amarjeet Singh, CR no. 150/2014, 153 2014, 154/2014 and 155/2014 and of Hon'ble Supreme Court of India in the matter of Mandvi Co op Bank vs. Nimesh B. Thakore, Crl. A. No. 72 of 2010 (arising out of SLP Crl no 3915 of 2006 and etc.) do not apply to the facts of the case as a none of these cases, the defence evidence had commenced followed by admission by the accused of the issuance of cheque in question as well as admission of liability during his crossexamination. Rather in the matter of Ashok Jain versus Amarjeet Singh, (supra), learned sessions judge condemned the procedure adopted/conduct of the learned trial court in adjourning the matter repeatedly for filing of application under section 145 (2) of NI Act and time and again granting opportunities to the accused and CR No.91/18 Page 10 of 14 observed as:
"In my considered view, the learned magistrate has failed to control and supervise the proceedings before her in several ways. As observed earlier, in a criminal case relating to offence under section 138 of the Negotiable Instruments Act, it is further accused to seek permission for crossexamining the limit on affidavit by moving application under section 145 (2) Negotiable Instruments Act at the proper stage which could be immediately after notice under section 251 Cr.P.C. is issued and served by the court and the defence plea recorded thereupon. The magistrate should not have granted so many adjournments just for asking at the convenience, whims and fancy of the accused to come with such application at his leisure. If the application had not been moved, the magistrate was duty bound to move ahead with the trial fixing the dates for further appropriate stage in terms of the law now settled."
16. This observation of the learned Sessions Judge rather supports the case of the respondent and the observations of learned trial CR No.91/18 Page 11 of 14 court in the impugned order. I find force in the submissions of the respondent that the filing of the application under section 145 (2) of NI Act was only an afterthought of the revisionist for trying to undo the admissions made by him during his crossexamination and it was only therefore that on the next date of hearing after 18.04.2017, learned counsel for revisionist filed the application under section 145 (2) of NI Act on 17.07.2017 despite seeking exemption on part of revisionist.
17. It is also noticed that submission of learned counsel for respondent is correct that the revisionist has not challenged impugned order on its merits in any manner whatsoever. Learned trial court has rightly observed in the impugned order that the matter is at the stage of DE and DW1 has partly been crossexamined. It is also correctly observed that at the time of framing of notice, accused/revisionist herein had taken defence that the cheque in question was given as security and the defence of security cheque can be proved by the revisionist/accused through his evidence in defence. In view of the conduct of the accused as noted above, I find no infirmity in the said observation of the learned trial court that the application under section 145 (2) of NI Act had been filed by the revisionist at belated stage and the defence of security cheque can be proved by the revisionist/accused through his evidence in defence.
18. In the matter of Rajesh Agarwal versus State and another, CR No.91/18 Page 12 of 14 ILR (2010) Delhi 610, (relied upon by revisionist as well), it has been observed that after being served with summons, if the accused appears, MM shall ask him to furnish bail bond to ensure his appearance during trial and after him to take notice under section 251 Cr.P.C and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145 (2) of NI Act. It was also observed that if there is an application under section 145 (2) of NI Act for recalling of a witness of complainant, the court shall decide the same otherwise it shall proceed to take defence evidence on record and allow cross examination of defence witness by complainant. Same procedure has been adopted by learned trial court in the complaint cases wherein the impugned order has been passed and there is no irregularity in the procedure adopted by learned trial court.
19. The application the section 145 (2) of NI Act filed by the revisionist before learned trial court is perused and it has been rightly observed by learned trial court in the impugned order that no plausible reason has been given in the application for requirement of crossexamination of the complainant.
20. In view of these observations, learned trial court has rightly dismissed the application of the revisionist filed under section 145 (2) of NI Act. There is no merit in the present revision petition and it is accordingly dismissed.
CR No.91/18 Page 13 of 1421. A true copy of the order be sent along with the TCR to learned trial court.
Digitally signed by NEERA
22. Revision file be consigned to record room. NEERA BHARIHOKE BHARIHOKE Date:
2018.07.17 16:44:23 +0530 Announced in the open court on 16.07.2018 (Dr. Neera Bharihoke) ASJ06/SouthEast/Saket/ND 16.07.2018 CR No.91/18 Page 14 of 14