Delhi High Court
M/S Nova Vision Electronics Private ... vs State And Another on 15 July, 2009
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
+* THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 02.07.2009
% Judgment delivered on : 15.07.2009
+ Crl. M.C. Nos. 3773/2008, 3774/2008,
3788/2008, 3789/2008, 3790/2008,
3791/2008 & 3792/2008
M/S NOVA VISION ELECTRONICS
PVT. LTD. & ANR. ..... Petitioners
versus
STATE & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Vijay Aggarwal & Mr Rakesh Makhija,
Advocates
For the Respondent : Mr. V.K. Kalra, Advocate for Respondent No. 2.
Mr R.N. Vats, Additional Public Prosecutor for
State.
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers may
be allowed to see the judgment ?
2. To be referred to Reporters or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
RAJIV SHAKDHER, J
1. The seven captioned petitions are instituted under Section
482 of the Criminal Procedure Code, 1973 (in short the „Cr.P.C.‟)
whereby a challenge is laid to seven separate but identical orders
of even date i.e., 03.10.2008 passed by the Learned Chief
Metropolitan Magistrate, Delhi (in short the „CMM‟). By these
impugned orders the petitioners‟ application both under Section
219 read with Section 220 of the Cr.P.C. and Section 145(2) of the
Crl. M.C. 3773/2009 Page 1 of 21
Negotiable Instruments Act, 1881 (in short the „N.I. Act‟) filed in
each of the seven cases stand rejected with cost of Rs 5,000/-
each.
2. In view of the fact that, even though the learned CMM has
passed separate orders of even date in respect of applications filed
in each of the seven complaints, the impugned orders in terms are
identical, I propose to dispose of these petitions by a common
order.
3. Before I proceed further, it may be relevant to extract the
main prayers made by the petitioners in the said applications.
Application under Section 219 & 220 of Cr.P.C.
"To try all the seven cases pending before this
Hon‟ble High Court between the parties arising
out of the same transaction jointly by single trial."
Application under Section 145(2) of the N.I. Act.
"It is, therefore, most respectfully prayed before
this Hon‟ble Court that, in view of the
abovementioned facts and circumstances of the
present matter, this Hon‟ble Court may, kindly, be
pleased to examine on oath in person, the
authorized representative of the complainant
company, who must have/had the knowledge of
the facts contained therein the present matter,
with the accused/applicant."
4. The institution of the said applications arose in the backdrop
of facts and circumstances which for the purposes of convenience
are best gleaned from the present petitions under consideration.
The broad narrative in the petitions is as follows:
4.1 Respondent-2, which is a registered partnership firm as also
the complainant in each of the seven cases instituted in the court
Crl. M.C. 3773/2009 Page 2 of 21
of the learned CMM, during the period 2001 - 2003, was issued
thirteen (13) cheques (in the petition there is a reference to 15
cheques while at page M of the petition, the number of cheques
referred to are 13) towards purchases made by the petitioners
from time to time. Each cheque is in the sum of Rs 1.00 lac. The
sum total of the said cheques is Rs 13 lakhs. Each of these
cheques was dishonoured albeit on different dates. Consequently,
respondent-2 triggered the provisions of Section 138 of the N.I.
Act. The legal pre-requisites were complied with, prior to
institution of the complaints, in the court of the learned CMM. A
summary of the necessary details, which in a sense is the nuts and
bolts of an action under Section 138 of the N.I. Act are best
captured in the table below, which is based on details given by the
petitioners at page M of the petition.
S.No. (1) (2) (3) (4) (5) (6) (7)
Case No. 3375/06 3375A/06 3374/06 3403/06 3404/06 2312/07 2313/07
Complainant M/S Jain M/S Jain M/S Jain M/S Jain M/S Jain M/S Jain M/S Jain
Motors Motors Motors Motors Motors Motors Motors
Company Company Company Company Company Company Company
Cheque No. 225052 225053 225054 225055 225059 168201 168204
168199 168202 168205
168200 168203 168206
Amt. of 1,00,000 1,00,000 1,00,000 1,00,000 1,00,000 1,00,000 1,00,000
Cheque 1,00,000 1,00,000 1,00,000
1,00,000 1,00,000 1,00,000
Dt. of 14.12.01 14.02.02 14.04.02 14.06.02 12.02.03 10.10.03 29.09.03
cheque 12.06.03
14.06.03
Date of 06.06.02 13.07.02 22.07.02 26.07.02 12.06.03 13.10.03 03.10.03
dishonour/
memo
Complaint 05.08.02 04.09.02 04.09.02 13.09.02 04.08.03 19.11.03 19.11.03
filed on
Summoning 04.12.02 29.10.02 29.10.02 20.12.02 09.09.03 01.09.04 01.09.04
Order
4.2 A perusal of the table would show that out of the seven (7)
complaints four (4) were filed between August and September,
2002, while the remaining three (3) were filed between August
and November, 2003. Summons were issued in four (4) cases
Crl. M.C. 3773/2009 Page 3 of 21
between October and December, 2002, while in the remaining
three (3) cases, they were issued between September, 2003 and
September, 2004.
4.3 To be noted at this stage - it is not disputed by the learned
counsel for the petitioners that a separate affidavit by way of an
evidence has been filed on behalf of the respondent No.2 by its
authorized representative in each of the seven cases. There is no
other witness cited by the respondent-2/complainant.
4.4 The applications under Section 219 read with Section 220 of
the Cr. P.C. were filed on 18.01.2008, while those under Section
145(2) of the N.I. Act were filed on 03.10.2008.
5. A bare perusal of the dates and events set out above would
bring to fore the fact that there has been a considerable delay and
unexplained latches on the part of the petitioners in filing the
above-mentioned applications, the dismissal of which resulted in
the institution of the present petition. On this ground alone, the
petition in my view is liable to be dismissed since the inherent
powers of the court is meant to prevent abuse of the process of
Court and secure ends of justice and not otherwise. The action of
the petitioners does not subscribe to any of the said parameters.
But since the learned counsel for the petitioners has made an
impassioned plea that dismissal of the applications has resulted in
a great prejudice to him, I decided to examine his submissions.
5.1 The learned counsel for the petitioners has articulated three
issues before me with respect to the dismissal of the said
application.
Crl. M.C. 3773/2009 Page 4 of 21
(i) Failure to order joint trial in terms of Section 219 and
Section 220, Cr.P.C. of the seven cases, was prejudicial to the
petitioners interest and hence the impugned order was illegal.
(ii) Section 145(2) of the N.I. Act mandated an examination on
oath of the authorized representative of the complainant once an
application to that effect is made by the accused.
(iii) The learned CMM had no power under the provisions of the
Cr.P.C. to impose cost while dismissing the applications filed by
the petitioners. In any event his absence at the hearing was not
deliberate.
5.2 In support of the first issue the learned counsel submitted
that the failure on the part of the learned CMM to exercise his
jurisdiction to order a joint trial is prejudicial to the interest of the
petitioners, in as much as, even though the petitioners may be
charged separately, they will be tried once, which apart from the
convenience and saving in time and expense would prevent
disclosure of their defence in the event one trial is ordered as
against the situation obtaining presently, whereby they are
required to go through seven separate trials. In support of this
submission the learned counsel relied upon the provisions of
Section 219 and Section 220 of the Cr.P.C. Special emphasis was
laid on illustration „d‟ of Section 220.
5.3 The learned counsel further contended that if joint trial is
not ordered the petitioners run the risk of being sentenced
consecutively as against being subject to concurrent sentences. In
support of his submission reliance was placed on sub-section (5) of
Crl. M.C. 3773/2009 Page 5 of 21
Section 220 read with Section 71 of the Indian Penal Code, 1860
(in short the „IPC‟) and Section 31 of the Cr.P.C. To make good his
submission the following judgments were cited before me.
Adnan Bilal Mulla vs State of Maharashtra 2006 Crl.
L.J. 564 at page 568 paragraph 21; Smarty Machra
& Anr. vs State (Govt. of NCT of Delhi) 2007 (2) JCC
1570; Raja Dayanand vs State 2004 (3) JCC 1886; and
Vijay Mallya (Dr.) vs Enforcement Directorate 141
(2007) DLT 202.
5.4 As regards the learned counsel‟s contention with regard to
examination on oath of a person filing an affidavit by way of
evidence is concerned, the same is based on analogy drawn
between the provisions of Section 145(2) of the N.I. Act and
Section 296(2) of Cr. P.C. To buttress his argument the learned
counsel has relied upon the judgment of the Supreme Court in the
case of State of Punjab vs Naib Din (2002) SCC (Crl.) 33 at
page 37 paragraph 8.
5.5 As regards the third issue which pertains to imposition of
cost the learned counsel for the petitioners submitted that his non-
appearance on 3.10.2008 before the Court below, when the
impugned order came to be passed, was occasioned on account of
the fact that on that very date and time he was appearing in a
matter listed in this Court. His explanation for not being able to
appear even in the post-lunch session was that the matter listed in
this Court went on for a substantial part of the day and, since the
Court after hearing arguments proceeded to dictate the judgment
in court, it became impossible for him to physically appear before
the learned CMM on the said date. He thus submits that his
Crl. M.C. 3773/2009 Page 6 of 21
absence at the hearing was not deliberate. In any event the
learned counsel contends that the order imposing cost will have to
be set aside, since the Cr. P.C. does not confer any power on the
Magistrate to impose cost.
6. As against this Mr Kalra, learned counsel appearing for the
respondent No. 2 relied upon the impugned order to demonstrate
that both the petitioners and his counsel had adopted dilatory
tactics only to delay the culmination of the proceedings instituted
in the Court below. He laid stress on the fact that the case has
been pending disposal for six years and the cross-examination of
the complainant/witness has not taken place despite service of
notice on the accused, more than two years ago. He submitted
that the record of the Court below would show a consistent
pattern of absence of both the counsel and the accused.
6.1 As regards issue of joint trial Mr Kalra relied upon the view
expressed by the Court below that since the complainant is
prosecuting the case, the provisions for a joint trial in the Cr.P.C.
should enure to its benefit. Since the complainant in this case has
not sought a joint trial, no right is vested in the
petitioners/accused to insist on a joint trial as a matter of right.
Mr Kalra made it a point to stress that the application is woefully
belated and hence has been rightly rejected by the Court below.
6.2 As regards the submission with respect to the examination
on oath of the authorized representative of the complainant, who
had filed his evidence by way of an affidavit, Mr Kalra relied once
again on the reasoning given in the impugned order as also the
Crl. M.C. 3773/2009 Page 7 of 21
judgment of the Single Judge of this Court in the case of Radhe
Shyam Garg vs Naresh Kumar Gupta dated 09.05.2008
passed in Crl.MC 1522/2008; which has been affirmed by the
Supreme Court vide its judgment dated 05.05.2009 in Criminal
Appeal No.912/2009.
6.3 On the issue of costs the learned counsel for the respondent
No.2 submitted that in view of the conduct of the petitioners the
direction to pay cost as contained in the impugned order deserves
to be sustained.
7. Having heard the learned counsel for the parties, my opinion
on the issues is as follows:-
7.1 The first issue whether the learned CMM should have, in the
facts and circumstances of the case, ordered a joint trial. For this
purpose, it may be relevant to note the provisions with respect to
joinder of charges which are provided in Part B of Chapter XVII of
the Cr.P.C. The Sections in the said part of Chapter XVII span
from 218 to 224. Section 218 in a sense embodies a general rule
which postulates that for every distinct offence of which any
person is accused of, there shall be a separate charge for each of
the said offences and every such charge shall be tried separately.
The Section contains a proviso which enables an accused to move
a written application, and if the Court is of the view that no
prejudice would be caused to the accused, it may try all or any
number of the charges framed against the accused. Sub-section
(2) clearly stipulates that the provisions of Section 218 shall not
impinge upon the provisions of Sections 219, 221 and 223.
Crl. M.C. 3773/2009 Page 8 of 21
Therefore, a bare reading of Section 218 brings to fore the point
that the law requires that for each distinct offence a separate
charge should be framed and each charge should be tried
separately. The exceptions are provided in the subsequent
provisions, that is, Sections 219 to 221 and 223.
7.2 In the present case, the learned counsel for the petitioners
has relied upon Sections 219 and 220 of the Cr.P.C. to buttress his
submissions that a joint trial ought to have been ordered.
7.3 Section 219 stipulates that when a person is accused of
more than one offence of the same kind which are committed
within a time span of 12 months from first to the last of such
offences, whether in respect of the same person or not, the
accused may be charged with, and tried at one trial for any
number of offences not exceeding three (3). Sub-section (2)
provides that offences are of the same kind when they are
punishable with the same amount of punishment under the same
Section of the IPC or of any special or local law. The proviso not
being relevant for the purposes of this case has not been referred
to herein. A bare reading of Section 219 would show that firstly, it
is an exception to the general rule laid out in Section 218 of the
Cr.P.C., which stipulates separate charges for each distinct
offence and each charge be tried separately. Section 219 thus
being an exception to the general rule crafted in Section 218
permits joint trial if a person is accused of more offences than one,
provided they are of the same kind and they are committed within
a time frame of 12 months as indicated in the provision. The
limiting factor being that the Section enables a Court to order one
Crl. M.C. 3773/2009 Page 9 of 21
trial in respect of three charges for three offences of the same
kind even though they may be committed against different
persons. On the face of it, Section 219 is not applicable to the
facts of the present case since the petitioners has asked for a joint
trial with respect to seven cases. Even if one were to assume for
the sake of argument that these were offences of the same kind
committed within a period of 12 months, the provision would not
apply in view of the statutory limit prescribed therein. The
purpose of the statute is clear that if more than three charges are
tried by a single trial the accused is likely to be bewildered and
hence, the legislature abjures the Court from joinder of charges of
more than three offences in a single trial.
7.4 Section 220 deals with a situation where a person is accused
of having committed more than one offence in respect of series of
acts which are so connected to form the same transaction then
it is permissible for the Court to order a single trial for each of the
offences with which he is charged. Sub-section (2) takes into
account a situation where a person may be charged with one
offence of criminal breach of trust or misappropriation in respect
of several acts or items within a time span of one year then by
specifying gross sums in accordance with the provisions of sub-
section (2) of Section 212 or with respect to more than one offence
with a limit of a gross sum specified by breaking up the items or
acts committed in the course of 12 months into two or three
periods as per the provisions of Section 219(1), the connected
offences of falsification of accounts which facilitate or conceal the
offence or offences of criminal breach of trust or misappropriation,
Crl. M.C. 3773/2009 Page 10 of 21
can be ordered by a Court to be tried by a single trial. Sub-section
(3) deals with a situation where an act which is alleged to
constitute an offence falls under two or more separate definitions
provided in law in force, then the persons accused can be charged
with and tried by a single trial in respect of each of such offences.
Sub-section (4) of Section 220 deals with a situation where a
person charged is alleged to have committed several acts which by
themselves constitute a separate offence but when these offences
are combined may constitute a different offence. The purpose is to
charge and if found guilty, punish the person alleged to have
committed such acts with the graver offence. This sub-section
deals with a situation where series of smaller offences when
combined attain an aggravated form of offence.
7.5 Sub-section (5) of Section 220 makes it clear that the
provision which deals with trial will not impact the provisions of
Section 71 of the IPC which deals with the limits on punishment
for an offence made of parts forming an offence by themselves.
7.6 Sections 221 and 222 of the Cr.P.C. are in a sense an
exception to the rule that a person cannot be convicted unless he
is specifically charged in respect of an offence. Sub-section (1) of
Section 221 would ordinarily apply where the person is accused of
an act or series of acts, however, a doubt may arise as to which of
the several offences, the facts which when proved, would it be
applicable to. Thus, sub-section (1) would apply in a situation
where the accused is alleged to have committed an act or series of
acts which are of the nature that there is a doubt in the mind of
the Court as well as that of the prosecution agency that, if the
Crl. M.C. 3773/2009 Page 11 of 21
facts alleged are established, then which of the offences would the
accused be guilty of. In such a situation, the Court is empowered
to charge the accused having committed any of such offences
cumulatively or alternatively.
7.7 Section 222 deals with a situation which enables the Court
to convict a person of a minor offence even though the accused is
not charged with it if the charge is with respect to an offence
consisting of „several particulars‟ which when combined and
proved by the prosecution would form a complete minor offence.
The rationale being that the notice of graver charge brings to
notice of the accused all circumstances which go into constituting
a minor charge. The sub-section (2) of Section 222 empowers the
Court to reduce an offence from major to a minor offence if the
facts proved suggest the same, although the accused is not
charged with it. Similarly, sub-section (3) takes into account a
situation whereby an accused is charged with an offence but not
with an attempt to commit such offence. The court is empowered
to charge the accused with an attempt to commit an offence
although the accused is not separately charged with respect to the
attempt. Sub-section (4) not being relevant for the purposes of the
case need not be discussed.
7.8 Section 223 deals with joinder of charges against two or
more persons in the same trial. This is in contradistinction to
provisions of Sections 219 to 222 which deals with joinder of
charges in respect of the same person in a single trial. This
provision is also, as stated earlier, an exception to the general rule
Crl. M.C. 3773/2009 Page 12 of 21
laid out in Section 218 that every offence must be charged and
tried separately.
7.9 This brings us to the last Section i.e., Section 224 which
permits the complainant or the State conducting the prosecution
to withdraw other charges against the accused if he is convicted of
one of the many other charges framed against him before the
other charges are tried. This of course has to be done with the
consent of the Court or the Court on its own accord may stay the
inquiry into, or trial of such charge or charges. The effect of such
withdrawal results in an acquittal of the accused in respect of the
charge or charges so withdrawn unless the conviction is set aside
in which case the Court is empowered to proceed with the inquiry
or trial of the charge or charges so withdrawn.
8. A brief overview of the provisions of Sections 218 to 224
would show that the submissions of the learned counsel for the
petitioners is completely untenable. The general rule is that the
accused should be charged in respect of each distinct offence
alleged to have been committed by him and he is entitled to a
separate trial with respect to each of such charge in accordance
with the provisions of Section 218 of the Cr.P.C. The exceptions
culled out in Sections 219 and 220 apply to a situation as indicated
above, where the same person is accused of more offences than
one of the same kind committed within a time frame of 12 months
taken from the first to the last of such offences. The limiting
factor being that they cannot exceed three (3), and the Court
cannot order a single trial in respect of more than three (3) such
offences with which the accused is charged. As mentioned
Crl. M.C. 3773/2009 Page 13 of 21
hereinabove, in the facts of the present case the same is clearly
not applicable. The petitioners on their own showing are the
accused in seven (7) cases. As regards the learned counsel‟s
submission with respect to the applicability of Section 220 of the
Cr.P.C., in my view, the same is again without merits. For Section
220 of the Cr.P.C. to apply, it is important that series of acts which
comprise of several offences are connected in a manner that they
form one continuous whole i.e., one single transaction. In the
instant case, it is not disputed by the petitioners that thirteen (13)
cheques of different dates were issued by the petitioners. The said
cheques were presented by the respondent no.2 once again on
different dates. The dates of dishonour of the said cheques are
also different and as a matter of fact, not only the information with
respect to dishonour was received on different dates but also the
legal notices issued in respect of dishonour of each of the said
cheques also carried different dates. Importantly, from the
averments made in the petition, it is clear that the said cheques
were issued by the petitioners to respondent no.2 with respect to
separate purchase transactions. In my view, the provisions of
Section 220 of the Cr.P.C. are not applicable to the facts and
circumstances of the present case as each transaction was
separate. The transactions were not interconnected as a
continuous whole so as to form one single transaction. Each
purchase transaction being separate there was no continuity of
action and each act was complete by itself. See Nanak Chand &
Ors. vs Emperor: AIR 1924 Lahore 734 at Page 737 (C2) &
Page 738 (C1); Shapurji Sorabji & Anr. vs Emperor: AIR
Crl. M.C. 3773/2009 Page 14 of 21
1936 Bombay 154 at Page 157 (C1) and Page 158 (C1);
Ramchandra Rango vs Emperor: AIR 1939 Bombay 129; also
See Keshavlal vs Emperor: AIR (31) 1944 Bombay 306 at
311; Rajendra B. Chaudhary vs State of Maharashtra & Anr.:
AIR (2007) NOC 418.
8.1 I am also of the view that Section 220 of the Cr.P.C. is only
an enabling provision. If the Court were to hold separate trials, it
would not result in any illegality. As a matter of fact, the Court
unless it is very clear as to whether the offences would fall within
the ambit of the provisions mentioned hereinabove, it should not
take undue risk of holding a joint trial keeping in mind the interest
of the accused. See T.B. Mukherjee vs State: AIR 1954 All
501 at Page 503 (Paragraph 3).
8.2 Since I have come to the conclusion that the provisions of
Sections 219 and 220 are not applicable to the case of the
petitioners, though for different reasons, the submission of the
learned counsel that, the learned CMM had failed to exercise his
jurisdiction and has caused prejudice to the petitioners need not
detain me. Suffice it to say, that there will be no disclosure of
defence when the witness is examined, as he shall, as is evident,
be cross-examined with respect to separate purchase transactions.
8.3 To be noted in the petition, the petitioners have deliberately
maintained an eloquent silence with respect to the details of the
purchase transactions except to mention that cheques were issued
with respect to the purchases made by the petitioners from
respondent no.2 from time to time.
Crl. M.C. 3773/2009 Page 15 of 21
8.4 The submission with respect to the provisions of Section 71
of the IPC and Section 31 of Cr.P.C. is a red herring. Section 31 of
the Cr.P.C. enjoins upon the Court to pronounce separate
sentences in respect of each of the offences for which the accused
is found guilty. While Section 71 of the IPC provides that where
an offence is made out in parts and if each part in itself is an
offence then the offender cannot be punished with the punishment
of more than one of such offences unless it is so expressly
provided. The purpose is that the offender should be punished for
an offence as a whole and not repetitively for each part which may
form separate offences. Section 71 of the IPC has no applicability
as each purchase transaction being separate and complete in itself
they cannot be said to be parts of an offence. In any event this is
an issue which shall come to fore at the stage of awarding
punishment, if any. Sub-section (5) of Section 220 makes this
clear by providing that nothing contained in the said Section shall
affect Section 71 of the IPC. It is to be noted that all seven cases
in the instant case are before the same Judge.
8.5 It is important to note that the learned counsel had made no
submissions with respect to the said provisions in the Court below.
As a matter of fact, there is no averment or ground with respect to
same articulated in the petition. An oral submission has been
made for the first time in this Court. I may also add that the
perusal of the judgments cited by the learned counsel for the
petitioners would show that they have no relevance to the facts
obtaining in the present case.
Crl. M.C. 3773/2009 Page 16 of 21
9. As regards the submission of the learned counsel for the
petitioners in respect of an error committed by the learned CMM
in not allowing their application for examining the complainant in
person on oath is concerned, the same is no longer res integra in
view of a judgment of this Court in Radhey Shyam Garg vs
Naresh Kumar Gupta passed in Crl.M.C.No 1522/2008 dated
09.05.2008. This judgment is affirmed by the Supreme Court, as
noticed hereinabove, by its judgment dated 05.05.2009 passed in
Crl. Appeal No. 912/2009 entitled Radhey Shyam Garg vs
Naresh Kumar Gupta. The observations of the Supreme Court
with respect to the point in issue are contained in Paragraphs 15,
16 and 17 of the judgment. Being relevant the same are extracted
hereinbelow:-
"15. If affidavit in terms of the provisions of Section 145
of the Act is to be considered to be an evidence, it is
difficult to comprehend as to why the court will ask the
deponent of the said affidavit to examine himself with
regard to the contents thereof once over again. He may
be cross-examined and upon completion of his evidence,
he may be re-examined. Thus, the words "examine any
person giving evidence on affidavit as to the facts
contained therein, in the event, the deponent is
summoned by the court in terms of sub-section (2) of
Section 145 of the Act', in our opinion, would mean for
the purpose of cross-examination. The provision seeks to
attend a salutory purpose.
The statements of objects and reasons for enacting
the said provision, inter alia read, inter alia, as under :
"Keeping in view of the recommendations of the
Standing Committee on Finance and other
representations, it has been decided to bring out, inter
alia, the following amendments in the Negotiable
Instruments Act, 1881, namely:--
(i) to (iii) ...
(iv) to prescribe procedure for dispensing with
preliminary evidence of the complainant;
Crl. M.C. 3773/2009 Page 17 of 21
(v) ...
(vi) to provide for summary trial of the cases under the
Act with a view to speeding up disposal of cases;"
16. The object of enactment of the said provision is for
the purpose of expedition of the trial. A criminal trial
even otherwise is required to be expeditiously held.
17. We, therefore, do not find any justification for
arriving at a finding that a witness can again be
summoned for his examination in chief in the court
despite affirming affidavit in that behalf."
10. The last issue raised by the learned counsel for the
petitioners pertains to imposition of costs. It is important to note
here that during the course of hearing I had ascertained from the
learned counsel for the petitioners as to whether the Vakalatnama
on record before the Court below, authorised the Advocates who
had appeared before the Court on 03.10.2008 to act and plead on
behalf of the accused or, was it only confined to him personally.
He has admitted that the Vakalatnama not only authorised him but
also the Advocates who had appeared on 03.10.2008 in the Court
below. Therefore, the submission of the Advocates before the
Court below on 03.10.2008 that they were merely proxy counsels
for Shri Vijay Aggarwal, Advocate was inaccurate to say the least.
They were authorised to argue the matter which they failed to do,
despite a request made by the Court. In any event, as rightly
submitted by Sh V K Kalra, the learned counsel for respondent
no.2, the Court did not dismiss the application for non-prosecution,
on the other hand, discussed the matter on merits, and rejected
the applications only thereafter. In the petition the reasons given
by the learned counsel for the petitioners that his inability to
appear on 03.10.2008 in the Court below was on account of the
Crl. M.C. 3773/2009 Page 18 of 21
fact that he was busy in another matter listed in this Court, in my
view was neither here nor there. This is particularly so in the
instant case, as the client had consciously authorised more than
one person to appear before the Court below. When law firms
take up several matters and have several resources at hand, it
cannot be expected that matters listed in Court will not proceed
because a particular advocate is not available. It is expected that
a conscious attempt is made to arrange ones professional work in
a fashion that neither the Court nor the opposing party is
inconvenienced. I would have taken a more benign view of the
learned counsel‟s non-appearance if the record inspired
confidence that this was not ruse to delay the proceedings.
The following observations of the learned CMM made in the
impugned order specifically highlight this aspect:-
"It appears that the sole objective of accused behind
moving this application is to somehow delay the trial
of the case, because in this case evidence by way of
affidavit was so placed on record by the complainant
on 04.12.2006, and it is almost 2 years from then and
till date the present application has not been filed by
ld. CI for accused. Application is therefore devoid of
any merits, same is dismissed accordingly with an
exemplary cost of Rs 5000.
Lastly I will take up application moved by
accused seeking his exemption from personal
appearance on the ground of his illness. The medical
certificate attached with the said application is of
some "Prayag Hospital", situated at Noida, U.P.
Original certificate not produced for the perusal of
this Court. A bare perusal of the medical certificate
reveals a lot of discrepancies in it. Neither it bears
the registration number of the said hospital nor even
name of the doctor or his enrollment number has
been mentioned in the certificate. There is only a
seal of hospital affixed on it.
As per rules of Medical Council of India, each
and every doctor should ensure that any medical
certificate issued by him must disclose his name as
Crl. M.C. 3773/2009 Page 19 of 21
well his enrollment number on all the
communications made by him. Hence, prima facie I
have a grave suspicion about the authenticity and
genuineness of this medical certificate itself. Further
perusal of record reveals that accused is habitual of
seeking frequent exemptions on one pretext or the
other and it is always difficult to secure his presence
so as to ensure the smooth progress in the trial of the
case which is contrary to the mandate given by
Hon‟ble Supreme Court as well as our own Hon‟ble
High Court who have time and again cautioned the
subordinate judiciary to dispose of the cases under
Section 138 N.I. Act as expeditiously as possible.
Therefore, I do not find any merits in this application,
same is dismissed accordingly."
10.1 The matter, however, does not end here for the reason that
the learned counsel has submitted that there is no provision
empowering imposition of costs by the Magistrate. On this
account Mr Vijay Aggarwal, learned counsel for the petitioners is
right that there is no provision in the Cr.P.C. for imposition of
costs. The impugned order is set aside to that limited extent.
This, however, in my opinion, does not emasculated the High
Court‟s power to impose costs where ends of justice so demand
[See Mary Angel and Ors. vs State of T.N.: (1999) 5 SCC 209
at Pages 213, 216 to 217 and 222 (Paragraphs 8, 12 & 22
respectively)]. After taking into account the conduct of the
petitioners it would be a travesty of justice if no cost is imposed.
The petitioners have lost on substantive issues. Even in this Court
submissions were advanced on the issue of interpretation of
Section 145 (2) of the N.I. Act, when it was known to the learned
counsel that not only the issue stood decided by this Court but that
it was also affirmed by the Supreme Court. The latter part, that is,
the affirmation of the judgment of this Court by the Supreme
Court was brought to my notice by Mr Kalra. To be noted that the
Crl. M.C. 3773/2009 Page 20 of 21
learned counsel appeared before the single Judge and on his own
admission was involved with the proceedings in the Supreme
Court. Despite which, the judgment of the Supreme Court was not
placed on record on a specious plea that it was not available on
the internet. A little effort would have demonstrated otherwise as
the judgment could be obtained by visiting the official site of the
Supreme Court, i.e., www.supremecourtofindia.nic.in on the same
day. In all this precious Court time was lost. It is in these
circumstances, I feel constrained to impose a cost of Rs 10,000/- in
respect of each of the petitions. The cost shall be paid to the
complainant.
11. Consequently, the impugned orders are sustained save and
except to the extent as indicated in paragraph 10.1 above.
Accordingly, these petitions are disposed of.
RAJIV SHAKDHER, J.
July 15, 2009 kk/mb Crl. M.C. 3773/2009 Page 21 of 21