Delhi District Court
Jatan Kumar vs Santosh Tiwari on 10 May, 2014
IN THE COURT OF SH SANJAY BANSAL:
ADDL SESSIONS JUDGE03 (East):
KARKARDOOMA COURTS: Delhi
Criminal Revision No.: 30/14
(02402R0318202012)
Jatan Kumar
Director M/s R.P. Experts
At J2/33, Khirkhi Extn.
Malviya Nagar, New Delhi 17
Branch Office B 50, Gali no 1,
West Vinod Nagar, Delhi .... Revisionist
Vs.
1. Santosh Tiwari
2. Prem Babu Tiwari
Both Directors of M/s Little Star
Dressing Solutions Limited
Off: B 783 A, Sangam Vihar
Near S.S. Public School
New Delhi - 110 062 ..... Respondents
Date of Institution: 06.11.2012.
Order Reserved on: 03.05.2014.
Date of Order: 10.05.2014
CC No.: 2309/09
PS: Mandawali
U/S: 138 NI Act
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ORDER:
1. The revisionist preferred this criminal revision petition under Sec. 397 of the Code of Criminal Procedure, 1973 ("CrPC") feeling aggrieved by order dated 06.10.2012 (impugned order) passed by ld MM dismissing the complaint under Sec. 203 CrPC.
2. I have heard Shri J.P. Bansal, ld counsel for the revisionist and Shri Ajay Singh, ld counsel for respondents/proposed accused. I have perused the record including the TCR.
3. The only question to be considered in this mater is whether the respondents could be summoned as accused persons for an offence punishable under Sec. 138 Negotiable Instruments Act ("NI Act") even when the original cheque was not produced by the complainant?
4. The petitioner filed a complaint case under Sec. 138 of NI Act against two persons i.e. Santosh Tiwari and Prem Babu Tiwari (respondents herein). The case of the complainant was that complainant was Director of M/s R.P. Export whereas respondents were Directors of M/s Little Star Dressing Solutions Limited. There were business relations among them. Complainant used to supply garments as per the orders of the respondents' company. A bill dated 03.01.2009 vide invoice number 628 was raised for a sum of Rs. 1,45,500/ by the complainant. Towards this liability, respondents issued two postdated cheques bearing no. 466353 dated 30.01.09 for a sum of Rs, 64,000/ and Crl Revision No. 30/2014 Jatan Kumar Vs Santosh Tiwari & Anr. Page No. 2 of 7 466359 dated 28.02.2009 for a sum of Rs. 64,000/. Both the said cheques were drawn upon the Indian Overseas Bank Ltd. First cheque was honoured on its presentation but the other cheque bearing no. 466359 was returned dishonoured for the reasons 'insufficient funds" vide memo dated 08.06.2009. It is pertinent to mention here that bankers of the complainant did not receive the original cheque from the bankers of the respondents. However, information regarding dishonour of the cheque was given. Complainant contacted the respondents but they did not make any payment, rather misbehaved with him. Ultimately, complainant sent legal notice dated 27.06.2009 through registered AD & UPC but despite that respondents failed to make any payment. Complainant led the presummoning evidence. He himself appeared as CW 1. He also examined one Ajay Kumar Goyal from his bank as CW 2.
5. Ld. MM vide impugned order, however, dismissed the complaint case on the ground that complainant failed to produce the original cheque. Ld. MM vide impugned order observed that without placing the original cheque on record or at least photocopy thereof, complaint could not have been proceeded further.
6. Aggrieved of said order present criminal revision petition has been preferred.
7. Notice to the respondents were issued.
8. Ld counsel for the petitioner urged that grave injustice has been caused to the complainant. He argued that there was no fault of the complainant in misplacing the cheque. He vehemently submitted that ld. MM ignored the fact that one of the cheque of the accused persons was honoured and it was the only Crl Revision No. 30/2014 Jatan Kumar Vs Santosh Tiwari & Anr. Page No. 3 of 7 second cheque which was dishonoured. He further argued that receipt of the legal notice was not disputed by the respondents as they did not give any reply thereto. He also pointed out that testimony of CW 2 i.e. witness from the bank of the complainant was not properly appreciated. Ld. counsel for the complainant submitted that complainant could have proved his case through secondary evidence also. Reliance has been placed on the cases reported as Basanth Pictures Vs M.A. Ganesha Murthy [Crl Appeal No. 758 of 2004 decided on 04.06.2012].
9. Ld. counsel for the respondents, on the other hand, supported the impugned order submitting that ld. MM reached to the right conclusion. He also contended that in the absence of the original cheque, complainant had no case. He has supported his contentions by placing reliance on the cases reported as Amit Kumar Jaiprakash Singh Vs Mahesh Mahadev Dabholkar & Ors [2009 (2) DCR 268]; K.K. Seshien Vs S.R. Sundar [2009 (1) DCR 43] and J.N. Bhatia & Ors Vs State & Anr. [139 (2007) Delhi Law Times 361].
10. It is true that contents of a document can be proved by leading secondary evidence also. However, certain conditions are to be fulfilled before a party can be allowed to lead secondary evidence. These conditions are mentioned ion Sec. 65 of Indian Evidence Act. Further the kinds of secondary evidence are provided under Sec. 63 of the said Act. All the kinds of secondary evidence can not be given in all the cases. Section 65 of the said Act itself provides certain limitation as to what kind of secondary evidence can be given in a certain case/situation.
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11. In the cases cited by ld. counsel for the respondents on the aspect of secondary evidence i.e. Amit Kumar's case (supra) and K.K. Seshein's case (supra), it has been held that in the absence of the original cheque, offence under Sec. 138 NI Act could not be proved. However, in both the said cases the facts were different. The original cheque was not lost by the banker in any of the said cases. Those judgments will not apply to the present case.
12. In the case of Basanth Pictures (supra), it was held that the complainant could lead secondary evidence about the contents of the original cheque provided that the complainant fulfill the conditions enumerated under Sec. 65 of Indian Evidence Act.
13. In the present case, the petitioner alleges that the original cheque was lost by the banker of the respondents. This means that the petitioner/complainant was not responsible for loss of the original cheque. However, from perusal of the testimony of CW 2 who is from the bank of the petitioner, it is apparent that no such fact has been stated by the said witness. CW 2 nowhere stated that the banker of the respondents/accused persons did not return the original cheque. He merely stated that the cheque after dishonour was not handed over to R.P. Exports. Thus, it is the banker of the petitioner who apparently did not give the original cheque to the petitioner.
14. Though the story of the petitioner about loss of cheque is not proved as alleged by him, still complainant's case can be considered for leading secondary evidence for the reason that the banker of the petitioner was presumably at fault.
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15. Section 65 (c) of Indian Evidence Act will be applicable and, therefore, the complainant could lead any kind of secondary evidence as mentioned in Sec. 63 of the said Act.
16. On perusal of the record it appears that the complainant did not bring on record the required secondary evidence. The complainant/petitioner could not produce any copy of the cheque in question. The complainant could not give complete oral account of the contents of the said cheque. The complainant did not depose as to who has signed the said cheque. It was not clarified whether the cheque was signed by respondents in their individual capacity or as Directors of their company. It was also not clarified whether it was signed by both of them or only one of them. Further, it was not specified as to how both of them were liable to be summoned as accused persons because the bill was raised against a company and it was required of the petitioner/complainant to have specified the role of each of the Directors to make them vicariously liable under Sec. 141 of NI Act. Complainant did not bring on record the copy of the earlier cheque which was honoured which could have thrown some light on this apsect. These evidences were necessary to be brought on record.
17. Ld. MM rightly concluded that there was no case for summoning. He rightly observed that summoning of the accused in a criminal case is not an empty formality. Ld. MM correctly perceived the fate of the complaint case even if accused were to be summoned. Reliance of ld. counsel for the respondents on J.N. Bhatia's case (supra) is also justified.
18. The petitioner had no case at all. Firstly, no application was filed for Crl Revision No. 30/2014 Jatan Kumar Vs Santosh Tiwari & Anr. Page No. 6 of 7 leading secondary evidence and secondly, even if it is assumed that the petitioner could lead secondary evidence, still petitioner did not bring on record the necessary secondary evidence which could lead to summoning of the respondents. The petitioner must suffer for the same.
19. There was no error in the impugned order dated 06.10.2012. The complainant case was rightly dismissed. The present criminal revision petition is also liable to be dismissed and is hereby dismissed.
20. A copy of the order be placed in TCR and same be sent back to ld trial court.
21. File of revision petition be consigned to RR.
Announced in open court on 10th day of May, 2014 (Sanjay Bansal) ASJ03 (East) KKD Courts: Delhi: 10.05.2014.
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