Delhi District Court
Devender Gupta And Anr. vs . Intec Capital Ltd. on 30 March, 2013
Devender Gupta and anr. Vs. Intec Capital Ltd.
CR No: 09/13
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE-01, DWARKA COURTS, DELHI
CR NO: 09/13
1. Devendra Gupta
B-1/28, 2nd Floor
Malviya Nagar
New Delhi- 110 017
2. Minesh Gupta
B-1/28, 2nd Floor
Malviya Nagar
New Delhi- 110 017 ... Petitioners/Revisionists
Versus
Intec Capital Ltd.,
Through its Authorized Representative
having office at
701, Manjusha Building
57, Nehru Place
New Delhi-19. ... Respondent
Date of institution of revision petition : 14.02.2013
Date on which order reserved : 23.03.2013
Date on which order pronounced : 30.03.2013
ORDER
1. The revisionist is aggrieved by the orders dated 16.01.2013 and 23.01.2013 passed by the ld.trial court (hereinafter referred to as impugned orders).
2. Vide the impugned order dated 16.01.2013, exemption application of revisionists was allowed but cost of Rs.5,000/- each was imposed upon both the revisionists whereas vide the impugned order dated 23.01.2013, the application of revisionists for waiving of cost was dismissed by the ld.trial court.
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CR No: 09/13
3. The revisionists have challenged the impugned orders on the ground that on 09.01.2013 when the matter was adjourned for appearance of revisionists, counsel for revisionists was not aware that revisionists were pre-occupied in Agra in connection with sale of land. Therefore, non-appearance of revisionists on 16.01.2013 was not intentional and imposition of cost of Rs.5,000/-imposed on both revisionist was totally unwarranted.
4. Secondly, it has been averred that vide impugned order dated 23.01.2013, ld.trial curt has reached a wrong conclusion that no material was placed on record in support of submission that on 16.01.2013, revisionists could not appear before the ld.trial court due to unavoidable circumstances. It is submitted that necessary averments in the exemption application from personal appearance was there before the ld.trial court.
5. Lastly, the impugned orders were challenged on the ground that since revisionists had given good reason for their non-appearance, awarding of cost of Rs.5,000/- each on both revisionists is highly excessive and, therefore, impugned orders suffer from gross illegality and irregularity which require to be corrected by this court. Accordingly, it is prayed that impugned orders be set aside and cost imposed upon revisionists by the ld.trial court be waived of.
6. Notice of the revision petition was issued to the respondent. Counsel for respondent/complainant chose not to file any reply and submitted that he will argue the revision petition straightaway.
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7. I have heard Sh.Aseem Mehrotra, counsel for revisionists and counsel for complainant/respondent. I have also summoned the trial court record and have carefully perused the same.
8. The counsel for respondent has challenged the maintainability of this revision petition before this court on the ground that impugned orders are interlocutory in nature and no revision is maintainable against an interlocutory order as per Section 397(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.). In support of his contention, he has relied upon the judgment of Rajasthan High Court (Jaipur Bench) reported as Thakur Das Bhatia and anr. Vs. M.P. Meena, SB Cr.Revision petition No. 151/1985 decided on 17.12.1985.
9. It is further submitted by counsel for respondent that revisionists/accused persons were summoned by the ld.trial court vide order dated 24.08.2011 and revisionists/accused persons were required to appear in the court on 06.01.2012. However, revisionists/accused persons despite service chose not to appear before the ld.trial court and consequently, bailable warrants were issued against revisionists/accused persons. Thereafter, revisionists/accused persons sought exemption from the ld.trial court on the one pretext or the other and finally put in their appearance for the first time on 05.01.2013 for the purpose of seeking court bail. Thereafter, they again sought exemption on 09.01.2013 and 16.01.2013 and consequently, ld.trial court was constrained to impose cost of Rs.5,000/-each upon the CR NO: 09/13 3/7 Devender Gupta and anr. Vs. Intec Capital Ltd.
CR No: 09/13 revisionists/accused persons. It is submitted by counsel for respondent that revisionists/accused persons delayed the trial by seeking exemption on one ground or the other for one year and therefore, cost imposed by the ld.trial court as per Section 309 Cr.P.C.is reasonable one and discretion exercised by the ld.trial court cannot be interfered with in the revision petition. In support of his contention, he has relied upon the following judgments:- (1) American Express Bank Ltd. Vs. Sunil Kumar Gupta, High Court of Delhi, Crl.L.P.No. 120/07 and Crl.Appeal No. 611/07 decided on 12.10.2007; (2) K.Vijayan Vs.Central Bureau of Investigation, 94(2001) DLT 831 and (3) D.K.Associates Vs. Chander Bhan, Crl.M.C.4167/2011 decided on 22.12.2011.
10.Lastly, it was submitted by counsel for respondent that impugned order dated 23.01.2013 does not call for any interference by this court as the said application was rightly dismissed by the ld.trial court as it has no power to review its order in the light of bar contained in Section 362 Cr.P.C. Accordingly, a prayer was made for dismissal of the revision petition.
11.On the other hand, counsel for revisionists/accused persons has submitted that order imposing cost upon revisionists/accused persons is not an interlocutory order as qua revisionists/accused persons, order has become final and revision is very much maintainable before this court. It is further submitted by him that on the similar ground, exemption was sought by the revisionists/accused persons before the court of Sh.Ravinder Singh-II, Ld.MM, Dwarka on 28.02.2013 in CC No: 2691/12 on the CR NO: 09/13 4/7 Devender Gupta and anr. Vs. Intec Capital Ltd.
CR No: 09/13 ground of their pre-occupation in Agra and no cost was imposed by the said court. Accordingly, it is prayed that revision petition be allowed and impugned orders be set aside.
12.I shall first deal with the objection as to the maintainability of this revision petition before this court. The test to find out as to whether the impugned orders are interlocutory in nature or not, has been laid down by the Hon'ble Supreme Court of India in the matter of State through Inspector of Police Vs. N.M.T. Joy Immaculate, 2004 Crl.L.J.2515. In para 12 of the said judgment, the Hon'ble Supreme Court of India has held that the sole test to find as to whether an order is an interlocutory or not, is whether by upholding the objections raised by accused, it would result in culmination of proceedings. If the answer to the said question is in affirmative, then the order is not an interlocutory but is final and hence, revision is maintainable.
13.Applying the aforesaid test to the impugned orders, it can be safely concluded that impugned orders are interlocutory in nature as even if the plea of revisionists/accused persons with regard to waiving of cost is accepted, it will not lead to culmination of proceedings as despite acceptance of said plea, the trial would continue. Hence, impugned orders are interlocutory in nature. Therefore, the present revision is hit by bar contained in Section 397(2) Cr.P.C.
14.Even on merits, the present revision is not maintainable as revisionists/accused persons despite being served with summons CR NO: 09/13 5/7 Devender Gupta and anr. Vs. Intec Capital Ltd.
CR No: 09/13 on 06.01.2012 chose not to appear before the ld.trial court till 23.01.2013 except on one date i.e. 05.01.2013 when they had sought bail. Therefore, non-appearance of revisionists/accused persons before the ld.trial court for around one year, delayed the trial to a great extent and the ld.trial court rightly imposed the cost of Rs.5,000/-each upon the revisionists/accused persons for causing delay in trial u/s 309 Cr.P.C. Therefore, in the facts of the present case, no ground is made out to substitute the discretion exercised by the ld.trial court which was in tune with the mandate of Section 309 Cr.P.C.
15.The contention of the counsel for revisionists/accused persons that no cost was imposed by the court of Sh.Ravinder Singh-II, Ld.MM, Dwarka in the similar matter between the same parties, is not acceptable as facts and circumstances before the court of Sh.Ravinder Singh-II, Ld.MM, Dwarka which made him not to impose cost upon the revisionists/accused persons, are not before this court. However, in the facts of the present case, where revisionists/accused persons were able to delay the trial for one year, imposition of cost of Rs.5,000/-by the ld.trial court on both the revisionists/accused persons, does not call for any interference by this court.
16. I am also supported in my reasoning by the latest judgment of the Hon'ble High Court of Delhi delivered in Hardeep Bajaj Vs.ICICI Bank Ltd., Crl.Revision Petition No.11/2013 wherein the Hon'ble High Court of Delhi vide its judgment dated 09.01.2013 had upheld the order of the ld.trial court imposing adjournment cost of Rs.
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CR No: 09/13 25,000/- as the petitioner had committed default in payment on four dates pursuant to settlement. Therefore, the impugned order imposing cost upon the revisionists/accused persons does not call for any interference.
17.On the contrary, the ld.trial court had been indulgent enough as it had not used coercive process against revisionists/accused persons to secure their presence despite their failure to appear before it on many dates. The very fact that the ld.trial court had exempted the revisionists/accused persons on their plea that they were pre-occupied in Agra on 16.01.2013, shows that their plea was believed by the ld.trial court and that is why they were exempted from appearance in the court. The cost of Rs.5,000/- each was imposed upon the revisionists/accused persons for causing delay in the case by their non-appearance as mandated by Section 309 of Cr.P.C. Therefore, I do not find any illegality or infirmity in the order of the ld.trial court.
18.In the light of above discussion, revision petition filed by revisionists/accused persons is dismissed. Revision file be consigned to record room. TCR be sent back alongwith a copy of order.
Announced in the open court (Vikas Dhull)
Dated: 30.03.2013 ASJ-01/Dwarka Courts
New Delhi
CR NO: 09/13 7/7