Delhi District Court
Cr No. 90/13. Victoria vs . M/S Aad Finlease (P) Ltd. & Another. on 18 January, 2014
CR No. 90/13. Victoria Vs. M/s AAD Finlease (P) Ltd. & Another.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Criminal Revision No. 90/2013.
Victoria,
W/o Sh. Sharad Kumar,
R/o C6/268, Vasant Kunj,
New Delhi110070. ... Revisionist.
Vs.
1. M/s AAD Finlease (P) Ltd.,
Through Sh. Kanwaljit Singh,
Director,
Having its office at:
M9, Palika Bhawan, Ring Road,
Opposite Haytt Regency Hotel,
R.K. Puram, New Delhi110066.
2. The State,
(Govt. of NCT of Delhi). ... Respondents.
Date of Institution. : 2.5.2013. Arguments Advanced On. : 15.1.2014. Date of Order. : 18.1.2014. 18.1.2014. Present: Revisionist (accused before the ld. Trial Court) with
ld. proxy counsel Ms. Leela Singh for main counsel Ms. Ifat Sultana, for revisionist.
Sh. Naveen Saxena, ld. counsel for respondent no. 1 Page No. 1 of 10. Contd... ... ...
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(complainant before the ld. Trial Court). Sh. Pramod Kumar, ld. Addl. PP for State/respondent no. 2.
The present revision petition u/s 397 CrPC filed by the revisionist, against the impugned order dated 30.4.2013 of Sh. Arun Goel, ld. MM, Dwarka Courts, Delhi, in complaint case no. 1920/12, titled as "M/s AAD Finlease (P) Ltd. Vs. Victoria", u/s 138 NI Act, whereby the ld. Trial Court dismissed the application u/s 311 CrPC for summoning the witnesses and examining them, is fixed for order for today.
Arguments on revision petition were addressed by Sh. Vaibhav Trivedi, ld. counsel for respondent no. 1 and none had addressed arguments on behalf of the revisionist, inspite of grant of opportunities and, accordingly, the same was closed and both the parties were granted opportunity to file written submissions and pursuant thereto, both the parties have filed their respective written submissions. I have perused the same as well as entire record, including TCR.
:: ORDER ::
1. The case of the revisionist is that she had moved an application u/s 311 CrPC dated 30.4.2012, before the ld. Trial Court, on the ground that she had got an expert opinion, regarding the handwriting and signature over the cheque in question Ex CW1/D as well as loan agreement Page No. 2 of 10. Contd... ... ...
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and the Handwriting Expert gave his definite opinion that the disputed English writing and figure marked as DW1 and DF1, have not been written by the same person and the same opinion was also given on the signature over the loan agreement and further that the letter of Department of Posts, filed by the respondent no. 1, mentions that the same was delivered to the addressee on 19.3.2012, but it was not mentioned that the same was served upon the revisionist and, hence, the examination of Handwriting Expert and concerned official from Postal Department, were necessary for just and proper decision of the case, but inspite of that the ld. Trial Court dismissed the application u/s 311 CrPC, vide impugned order and, accordingly, same may be set aside and the revision petition may be allowed.
2. The relevant portion of the impugned order dated 30.4.2013 of the ld. Trial Court, on the aforesaid application, is as under: "... ... ...
An application was filed on behalf of the accused for seeking handwriting expert's opinion under Section 45 and 73 of the Evidence Act and the same has already been dismissed on 27.2.2013.
In that case, the present case as far as the sending documents for handwriting expert's opinion is not maintainable.
Page No. 3 of 10. Contd... ... ...
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Now, coming to the second contention of the accused for summoning the official from the Postal Department to prove that the notice has not been delivered upon the accused. The evidence of the accused has been closed on 16.1.2013. Earlier an application under Section 311 CrPC was filed on behalf of the accused. The same was allowed. No such ground was taken in that application. By the present application, the accused is seeking to fill the lacuna in his case, which cannot be allowed. Accordingly, the application under Section 311 CrPC stands dismissed.
... ... ..."
3. The first material ground taken by the revisionist is that the ld. Trial Court dismissed the application u/s 311 CrPC on 30.4.2013 itself, when the same was moved, without giving opportunity for the same. However, perusal of the impugned order reveals that it is clearly mentioned in the same that ld. counsel for both the parties were present and arguments were heard. Thus, it is clear that a false plea contrary to the record, has been taken by the revisionist on the said point.
4. Earlier prior to the filing of the aforesaid application u/s 311 CrPC, the revisionist had filed another application u/s 45/73 of the Evidence Act, wherein similar pleas, regarding the forging of the aforesaid documents, including the cheque in question, by the respondent no. 1, were taken and prayer was made for sending the said Page No. 4 of 10. Contd... ... ...
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documents to CFSL, for verification. However, the said application was dismissed by the ld. Trial Court with detailed reasoned order dated 27.2.2013 and admittedly the revisionist had not challenged the said order and the said order has not been set aside by any superior Court and has attained finality. It is pertinent to mention that the said application u/s 45/73 of the Evidence Act was filed by the revisionist after closer of the defence evidence. Further, on 27.2.2013 itself, another application u/s 311 CrPC was moved on behalf of the revisionist for leading further defence evidence, wherein the revisionist had taken the plea that she had already paid the earlier loan amount taken from the respondent no. 1 and that the cheque in question was given as security towards earlier loan and the same has been misused by the respondent no. 1 and the said application was allowed by the ld. Trial Court and pursuant thereto, the revisionist had led further defence evidence. Admittedly, the application u/s 311 CrPC (dated 30.4.2013), in question, was moved at the stage of final arguments. Further, it is admitted case of the revisionist that the cheque in question bears her signature. As regards the plea of the revisionist that the said cheque was given as security cheque, towards earlier loan, the same is a matter of defence and the revisionist was granted ample opportunities during evidence to prove the said fact in her defence. Further, the ld. Trial Court Page No. 5 of 10. Contd... ... ...
CR No. 90/13. Victoria Vs. M/s AAD Finlease (P) Ltd. & Another.
while deciding the application u/s 45/73 of the Evidence Act of the revisionist, had dealt with the plea of the revisionist, regarding the said cheque bearing her signature only and other particulars being filled in by the respondent no. 1 and had relied upon various case laws while dismissing the application. The said order has already attained finality and on similar facts another application u/s 311 CrPC, just by changing the nomenclature, was not maintainable. Also, the cheque in question Ex CW1/D has been returned unpaid by the banker with the remarks "funds insufficient" and not with the reason that the signature differ. Further, the revisionist in her plea to the notice u/s 251 CrPC, had admitted that the cheque in question bears her signature. Also, the revisionist in her statement u/s 313 CrPC has admitted her signature on the said cheque and has not taken any plea that the cheque was blank, at the time of delivery to the respondent no. 1.
5. As regards the other ground of the revisionist that the purported document Ex CW1/C dated 17.1.2012, the ld. Trial Court in its order dated 27.2.2013, while deciding the application of the revisionist u/s 45/73 of the Evidence Act, had observed that the revisionist had admitted her signature on the said document and the content of the said document are typed and that there is no need to Page No. 6 of 10. Contd... ... ...
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send the same to CFSL. The case of the revisionist appears to be that the said document was never prepared and her signature on plain paper were misused by the respondent no. 1 making the same a false document to the effect whereby the revisionist had acknowledged her liability and that of her husband towards loan of Rs. 16,92,125/ and issuance of the cheque in question dated 17.1.2012 for an amount of Rs. 16,92,125/ towards the said liability. However, since the ld. Trial Court has already rejected the said plea of the revisionist, vide aforesaid order dated 27.2.2013 and the said order has attained finality, therefore, it was not open to the revisionist to raise the said ground in the aforesaid application u/s 311 CrPC dated 30.4.2013, at final stage and in any case, the revisionist had all the opportunities in the world to put all questions to the witness of the respondent no. 1 and also to lead evidence in her defence, at appropriate stage. Hence, no justifiable ground was there to grant further opportunity to the revisionist for leading evidence on the said aspect, at the final stage.
6. The other contention of the revisionist that the letter filed by the respondent no. 1 of Department of Posts, regarding alleged delivery of service of the legal notice of demand upon the revisionist, merely mentions that the same was delivered to the addressee on 19.3.2012 and it is nowhere Page No. 7 of 10. Contd... ... ...
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mentioned that the said notice was delivered upon the revisionist and witness from the said Department needs to be examined on behalf of the revisionist in this regard, has no force, as first of all the revisionist had got ample opportunities during cross examination of the AR of respondent no. 1 to put all questions to the said witness, on the said aspect and further, in the opinion of this Court, the said plea was taken at belated stage of final arguments to fill up the lacunae by the revisionist and it was open to the revisionist to examine the said witness in her defence evidence. Further, in view of law laid down in the case of "CC Alavi Haji Vs. Palaputty & Another", MANU/SC/2263/2007, CR Appeal No. 767/2007 SC, it was open to the revisionist to make the payment of cheque amount in question within 15 days of the service of summons of the original complaint case u/s 138 NI Act, in case she was disputing the service of legal notice of demand. Further, since once the earlier application of the revisionist for sending the aforesaid disputed documents to CFSL was already dismissed by the ld. Trial Court and the opinion of the Handwriting Expert was obtained by the revisionist on her own, without permission of the ld. Trial Court and the said handwriting opinion has been given in the absence of the original disputed documents and the said application u/s 311 CrPC being moved at belated stage of final argument, forces this Court to reach Page No. 8 of 10. Contd... ... ...
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the conclusion that the revisionist is indulging in delaying tactics and is trying to fill up the lacunae and the said fact is otherwise also clear from the perusal of the various order sheets of the ld. Trial Court as well as of this Court.
7. In view of the aforesaid discussions, I am of the considered opinion that there is no infirmity or illegality or impropriety in the impugned order of the ld. Trial Court. The revision petition has been filed merely to delay the proceedings and to fill up the lacunae, which cannot be permitted. Accordingly, the present revision petition is dismissed with a cost of Rs. 10,000/ to be paid by the revisionist (accused before the ld. Trial Court) to the respondent no. 1 (complainant before the ld. Trial Court), for causing delay as per Section 309 CrPC, before the ld. Trial Court, on NDOH.
8. A copy of this order alongwith TCR be sent to the ld. Trial Court, for 25.1.2014 at 2.00 pm, for information and further proceedings, as per law.
9. Parties are directed to appear before the ld. Trial Court, on the given date and time.
10. Revision petition file be consigned to record room. Page No. 9 of 10. Contd... ... ...
CR No. 90/13. Victoria Vs. M/s AAD Finlease (P) Ltd. & Another. Announced in the open Court on 18.1.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 10 of 10. Contd... ... ...