Delhi District Court
Sh.G.S.Bhatia vs M/S Amba Leasing & Financing Co on 14 November, 2018
1
IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2
NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
Crl. Rev. No. 792/2018
Date of institution: 03.11.2018 Decided on:14.11.2018
In the matter of :
Sh.G.S.Bhatia
.....Petitioner
Versus
M/s Amba Leasing & Financing Co.
....Respondent
JUDGMENT
By way of present petition, two orders passed by Learned Metropolitan Magistrate in Complaint Case No.542605/16 have been challenged. One is dated 13.08.2018 and other dated 23.10.18. Said complaint case came to be filed by the complainantrespondent company against the petitioner. Complaint is under section 138 of Negotiable Instruments Act.
22. In the complaint, petitioner has been facing trial on the accusation that three cheques issued by him in favour of the complainant, to discharge legal liability, when presented for encashment were received back as dishonoured with reasons "Funds Insufficient" and despite service of demand notice, he failed to discharge his liability.
3. In reply to notice u/s 251 Cr.P.C, the accused petitioner pleaded not guilty and claimed trial, and opted to lead defence evidence.
It was thereafter that complainant examined its Authorised Representative as CW1.
4. The accused was then examined u/s 313 Cr.P.C. When so examined, he admitted the factum of issuance of the cheques but pleaded that column means for name and date were not filled up by him.
Further, according to him, cheques were issued for security purpose.
He admitted that cheques were received back as 3 dishonboured with remarks "Funds Insufficient" vide cheque return memo dated 23.05.2018.
However, he denied to have issued any cheque to discharge any legal liability. He also denied have received any demand notice from the complainant.
Further defence plea put forth by accusedappellant in his statement u/s 313 Cr.P.C reads as under: "I am innocent. The complainant has misused the "blank stamp paper given by me during the commercial dealings with the complainant company for security purpose." Complainant has filled the material on the said blank stamp paper without any consent and knowledge and has filed the false case against me."
5. Learned counsel for the petitioner submits that learned Metropolitan Magistrate has erred in dismissing his two applications vide these two separate orders, as thereby accused petitioner has been incapacitated to lead defence evidence in support of the defence plea about forgery of the document i.e 4 Ex.CW1/B Receipt cum undertaking.
In support of his contention, Learned counsel has referred to decision in "Ajay Jain v. Purshottam Nath Jain & Sons (HUF)", CRL. REV. P.478/2011 & CRL.M.A.No.12757/2011 decided on 04.02.2013, by Hon'ble Delhi High Court and "Mrs. Kalyani Baskar vs. Mrs. M.S.Sampoornam," Appeal (Crl.) 1293 of 2006 decided on 11.12.2006 by Hon'ble Supreme Court of India.
6. Record reveals that complainant filed application u/s 145(2) of Negotiable Instruments Act seeking opportunity to cross examine the complainant on points (A) to (J).
From these points, Learned Counsel for petitioner has referred to point D. It reads as under: "The Receiptcumundertaking/declaration filed by the Complainant is a forged document, and Accused has never executed the said document."
7. While referring the case of Sethuraman v.Rajamanickam, 2009 Cri. L.J.2247, Counsel for complainant respondent submits that this revision petition is not 5 maintainable as the orders challenged before this court are interlocutory orders.
In Sethuraman's case, applications u/s 91 Cr.P.C and 311 Cr.P.C were filed on behalf of the accused seeking directions to produce Bank Pass Books, Income Tax Accounts and the L.D.S.deposit receipts of the appellant, as also for recalling him for crossexamination.
Hon'ble Apex Court observed that the order passed by the Trial Court refusing to call the documents and rejecting the application u/s 311 Cr.P.C were interlocutory orders and as such revision was clearly barred u/s 397 (2) Cr.P.C.
Herein, application has not been filed for production of any documents or calling upon the complainant for further cross examination. Vide impugned orders, the two applications filed by the accused for analysis of the signatures and print on the document i.e. Receipt cum undertaking were dismissed. The case is distinguishable on facts.
In the application dated 2.2.2018 (which came to be dismissed vide first mentioned impugned order dated 13.08.2018), the petitioner prayed that document Ex.CW1/B be 6 sent to Forensic Scientific Officer for determining sequence of signatures and print.
This prayer came to be made on the ground that one of signatures on this document were put even before the word 'Executant' was typed, and this goes to show that complainant has made this false document by typing the matter/text on stamp paper which was bearing only the signatures of the petitioner.
Learned Metropolitan Magistrate referred to the previous order vide which earlier application filed by the petitioner in this regard was dismissed.
8. Undisputedly, the previous application was filed for referring the document marked as Ex.CW1/B to Forensic Science Expert and the same came to be dismissed vide order dated 09.11.2017. Admittedly, the complainant accepted the order dated 09.11.2017.
Learned Metropolitan Magistrate dismissed the application dated 2.2.2018 vide first mentioned impugned order dated 13.08.2018 by observing in the manner as: "From the aforesaid it is clear that by way of this 7 application, the accused is seeking an expert opinion with respect to the age of the ink. It is well settled that once the signatures on the cheque are admitted with respect to offences punishable u/s 138 NI Act, then there is no requirement for sending the cheque in question for an expert opinion with respect to the age of the ink."
It is true that vide application dated 02.02.2018, the petitioner did not seek expert opinion with respect to the age of the ink. Rather, he sought opinion of the expert that signatures were obtained even before the word 'Executant' was typed.
9. A perusal of the stamp paper on which document Ex.CW1/B has been executed would reveal that it purports to have been purchased by Sh.G.S.Bhatiapetitioner in his name on 03.01.2004. In the application u/s 145 (2) of the Act, the petitioner nowhere alleged that he had not purchased this stamp paper.
8He also did not specifically allege in the application under Section 145(2) of the Act that his signatures were obtained by the complainant company on a blank paper. He simply alleged that the documents filed by the complainant is a forged document and that he never executed the said document.
It is not the case of accused that at any point of time, he lodged any protest with the complainant that anyone from the complainant had obtained his signatures on blank stamp papers or that he had not produced any such stamp paper.
The fact remains that the allegation put forth by the petitioner in his application dated 2.2.2018 is without any such specific pleading in the initial application under Section 145(2) of the Act. He was required to specifically so plead in the application under Section 145(2) of the Act. In absence of such a specific plea in the application under Section 145(2) of the Act, the petitioner can safely be said to have come up with the allegation without specific pleadings.
Vide second impugned order dated 23.10.18, Learned Metropolitan Magistrate has rejected the prayer of the accused for examination of aforesaid document Ex.CW1/B by 9 any private document examiner/expert.
10. The prayer in this third application was that his signatures were obtained on a blank piece of stamp paper which was kept by the complainant for security purpose along with cheques in question but the complainant has created false document in the form of Receipt cum Undertaking.
It may be mentioned here that another application u/s 136 of the Evidence Act was also filed by the accused and the same has also been dismissed. In the course of arguments before this court, no submission has been put forth on the correctness of the impugned order dated 23.10.2018 as regards observations made by Learned Metropolitan Magistrate on this application.
For the aforesaid reasons and the above discussion, court does not find any illegality or irregularity even in the order dated 23.10.2018.
Decision in Ajay Jain's case and Kalyani Basker's case do not come to the aid of the petitioner in the given facts and circumstances. In Kalyani Basker's case, Hon'ble Court 10 observed that appellant was entitled to rebut the case of the respondent and if the "cheque" would furnish good material for rebutting the case, the Magistrate declining to send the cheque for examination and opinion of the handwriting expert deprived him of an opportunity of rebutting it. Herein, the appellant has admitted his signatures on the cheques. As noticed above, the stamp paper is purported to have been purchased by the appellant.
11. In the given facts and circumstances, the two applications deserved to be dismissed. It is true that as observed in the impugned order dated 23.10.18, petitioner has not filed any application u/s 315 Cr.P.C for his examination as his own witness and despite repeated opportunities to lead defence evidence.
Petitioner should have filed application and that too timely to step into the witness box as his own witness. But he never thought of filing of such an application.
Case came up for defence evidence for the first time in the year 12.08.2013. Not even a single witness was been examined by the accusedpetitioner in defence.
1112. In the interest of justice, court deems it to be a fit case where petitioner should be given at least one opportunity to file an application under Section 315 Cr.PC.
However, petitioner is permitted to file application under Section 315 Cr.PC, subject to cost of Rs.2000/.
13. It is made clear that in case accusedpetitioner does not move any application u/s 315 Cr.P.C for his examination as own witness, by 17.11.2018 before Learned Metropolitan Magistrate, Trial Court may list the matter for final arguments.
Trial Court Record be returned with copy of Judgment. File of revision petition be consigned to record room.
Digitally signed by Announced in the open Court NARINDER NARINDER KUMAR th KUMAR on this 14 day of November 2018 Date: 2018.11.19 12:57:23 +0530 (Narinder Kumar) Special Judge NDPS - 02 (Central) Tis Hazari Courts, Delhi.