Delhi District Court
Cri. Rev.No.181/2/ vs Daryao Singh Khatri on 14 December, 2011
Cri. Rev.No.181/2/11
14.12.2011
Pre: None.
Vide separate order placed along side in the file, the impugned
order dated 10.01.2011 dismissing the application of the revisionist does
not speak any reason for the dismissal of the same. In light of this, to
meet out the legitimate expectations the case is remanded back to Ld.
Trial Court with the direction to pass a speaking order in light of the
above observations on the application of the revisionist. In view of this
revision petition filed by the revisionist stands disposed of. Trial Court
record, if any be sent back with a copy of the order. Revision petition/
proceedings be consigned to record room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE
(WEST02):DELHI
1 / 10
IN THE COURT OF SH. RAJ KAPOOR,
ADDITIONAL SESSIONS JUDGE (WEST02) , DELHI.
Criminal Rev. No. 181/2/11
Rajender Prasad Gaur
s/o Late Sh. Mathura Prasad Guar
R/o 179C, Second Floor,
Ekta Enclave, Peera Garhi,
Delhi
........Revisionist
Versus
Daryao Singh Khatri
S/o Late Sh. Chandgi Ram
R/o 123/127C, Ekta Enclave,
Peera Garhi, Delhi.
........Respondent
14.12.2011
ORDER:
1. By this order I shall dispose of the criminal revision petition filed by the revisionist against the impugned order dated 10.01.2011 (hereinafter referred as impugned order) passed by the ld.MM Rohini Court, whereby the ld. court has dismissed the application of revisionist for sending the cheque to CFSL.
2 / 102. Briefly facts of the case are that a complaint case for the offence u/s 138 N.I. Act is pending before ld. trial court between the revisionist and the respondent. Ld. trial court, after going through the case file vide impugned order dated 10.01.2011, dismissed the application moved by the revisionist for sending the cheque in question to CFSL, being devoid of merit. D.E. was already closed as per separate statement of the revisionist. Ld. counsel for the revisionist feeling aggrieved with the impugned order filed the present revision petition.
3. Arguments of both parties were heard at length. During the course of arguments, Ld. Counsel for revisionist submitted that he had moved an application before ld. trial court to send the cheques in question to CFSL but the same was dismissed without giving any reason, vide impugned order dt. 10.01.2011. He further submitted that the impugned order does not meet out the standard of legality and propriety. On these grounds, he submits that the order of Ld. MM be 3 / 10 set aside.
4. Contrary to it , Ld. Counsel for respondent controverted the contentions of Ld. Counsel for revisionist and argued that the revision petition has been moved after lapse of 8 months. Ld. Counsel for respondent further submitted that neither any particular to send the cheques to CFSL has been given nor modes have been given by the revisionist. He again argued and submitted that the application was moved just to cause delay to the trial. On these grounds, he submitted that revision petition does not deserve any merits to succeed. In support of his contentions ld. counsel for the respondent has relied upon the following citations:
i) State of Rajastahan Vs Madan Gopal & Ors AIR 1999 Rajasthan 248, wherein it has been observed that : "6. Coming to the facts of this case, as stated earlier, the period of limitation was going to expire on 17th June, 1995. Till then, the State Government was not at all interested in challenging the impugned order passed by the D.I.G. (Stamp) on 1831995. It was only after a period of two months of expiry (of) date of the limitation, the State Government woke up and appointed Officerincharge on 1181995, who applied for the certified copy of the order only after six days i.e. on 1781995. Thus, the delay was not excusable. The State Government completely failed 4 / 10 in its application made under Section 5 of the Limitation Act to show any cause much less sufficient cause to condone the delay before the Board of revenue. Under the circum stances, it cannot be said that the Board of revenue failed to exercise its revisional jurisdiction on a revision petition filed by the State of Rajasthan against the order of the D.I.G. (Stamp). Thus, while rejecting the revision petition on the ground of limitation, the Board of Revenue has neither committed error of law or jurisdictional error which requires to be corrected by this Court in its powers under Article 227 of the Constitution of India. 7. Before parting I must state that if at all the Government is put to the loss of about Rs. 7 lacs, then, it is the duty of the State Government to find out as to who was the person at fault for not bringing to the notice of the State Government and for not taking immediate steps at least for applying for certified copy of the order before the period of limitation expired and to recover the said amount from him either from his salary or from his pension, if he has already retired.
8. In view of the above discussion, this petition fails and is dismissed."
ii) Ram Lal Hans & Sons Vs Union of India 2002 II AD (Delhi) 473; in this case it has also been observed that: ".....the Union of India was served on 20th September, 1996 and application had been filed after an year seeking condensation of delay. In that view of the matter the Union of India necessarily had to show as to what prevented it from filing the objections within time. The application by itself is delightfully vague. It simply states that delay occurred due to seeking legal opinion from various departments. The normal principle of law is that a party seeking condensation of delay must explain each days delay. Herein what to talk of each days delay, the delay of months is not at all being explained. Stating that there was delay in various departments would not improve the version of the 5 / 10 objector. It is not known as to which department delayed and why and how the delay occurred. Consequently there is no hesitation in concluding that there is no specific averment as to why delay has occurred. Merely because it happens to be the Union of India/State necessarily does not imply that period of limitation will have no say in the matter or they can approach the court at any time. Delay occurs because of the vast administrative expense of the State but still it must be explained as to how the delay has occurred. It is not done. Therefore, there is no ground to condone the delay and as a necessary corollary the objections filed along with the application seeking condensation of delay fails and are dismissed."
iii)Jaipal Singh Rana Vs Swaraj Pal Singh and Anr. 2010 (1) DCR 636, in this case it has also been observed that: "20. A Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 relying on earlier judgment of the Division Bench in Gangadhar explained the law thus:
In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than 6 / 10 the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank. Banks would normally see whether the instrument tis that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else without the knowledge and consent of the drawer. In the instant case, the drawer of the cheque has not discharged and burden. Apart from the interested testimony of the drawer, no independent evidence was adduced to discharge the burden.
7. Defendant had set up a case that the two cheques were taken away from her establishment.
Burden is on here to show that the two cheques were taken away from her business premises. Apart from the intested testimony of the defendant there is no other independent evidence adduced to establish the story that cheques were stolen from her business premises. Defendant has not cared to examine any of the employees of the establishment. Counsel appearing for the defendant placed considerable reliance on the decision of this Court in Gandgadhara Panicker v. Haridasan 1989)2) KLT 730 and the contended that the presumption under Section 118 of the Act would arise only when there is a negotiable instrument which is admitted to have been executed. It is pointed out that when the fact of execution of the cheque itself is in dispute plaintiff 7 / 10 has to prove also passing of consideration. In other words, only when due exe cution has been established presumption under Section 118 (a) can be raised. Reference was also made to the decision of the Mysore High Court in Gurubasappa v. Rudriah AIR 1969 Mys. 269. We are of the view, in a given case cheque is issued by the drawer in favor of the payee and the same is dishonoured by the drawer's Bank stating "funds insufficient", holder of the cheque is entitled to get the amount as reflected in the cheque since the cheque is a negotiable instrument as per Section 118. We are of the view under Section 118 of the Act until the contrary is proved presumption can be made that every negotiable instrument was made for consideration. The expression "until the contrary is proved" is relevant under Section 118 of the Negotiable Instrument Act. When the drawer of the cheque did not find any infirmity in the cheque presented by the payee presumption raised under Section 118 would apply unless the contrary is proved by the drawer of the cheque. Therefore mere fact that the payee's name and the amount shown in the cheque Is not in the handwriting of the drawer of the cheque that by itself is not a ground to contend that they are not validly issued or the cheques were not executed at all.
21. Respectfully following the aforementioned decision this Court is satisfied that the earlier order dated 8th March 2006 passed by the learned MM declining to refer the cheques in question for the opinion of the handwriting expert was valid and did not call for any review. The subsequent order dated 14th September 2006 passed by learned MM was in the circumstances not sustainable in law. It is accordingly hereby set aside."
5. I have given careful consideration to the submissions of ld. counsel for the revisionist. I have also gone through the citations as relied upon by the ld. counsel for the respondent.
8 / 106. The main grievance of the revisionist is that the application filed by the revisionist before ld. trial court to send cheques in question to CFSL was dismissed vide court order dated 10.01.2011 without giving any specific reasons. On perusal of the case file it reveals that intention of the revisionist appears to have caused delay to the disposal of the case precisely for the reasons that the application moved by him to send the cheques in question to CFSL was filed at a belated stage and more so the revision has also been filed after lapse of 8 months. Though an application for condonation of delay has also been filed by the ld. counsel for the revisionist, yet, if revision petition is allowed it may tantamount to invoke the inquisitorial process whereas the adopted system in force is adversary process. Though this court has power to invoke the inquisitorial process yet keeping in view of the conduct of the revisionist to file the revision petition at a belated stage and moving application to get the cheques in question to send CFSL appears to have caused delay in the early disposal of 9 / 10 the case. Therefore, if revision petition is allowed it may impact the fairness in the disposal of the case. But perusal of the impugned order dated 10.01.2011 dismissing the aforesaid application of the revisionist does not speak any reason for the dismissal of the same.
In light of this, to meet out the legitimate expectations the case is remanded back to Ld. Trial Court with the direction to pass a speaking order in light of the above observations on the application of the revisionist. In view of this revision petition filed by the revisionist stands disposed of. Trial Court record, if any be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 14.12.2011 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):DELHI 10 / 10