Delhi District Court
Himanshu Gupta vs . Puneet Kochhar on 25 August, 2018
Himanshu Gupta Vs. Puneet Kochhar
CR No: 294/2018
IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE,
(PC ACT) CBI-I ,DWARKA COURTS; NEW DELHI.
Himanshu Gupta
S/o Sh. Ram Avtar Gupta
R/o 96, Swastic(Kunj) Appartments,
Sector-13, Rohini
Delhi- 110085. ...... Revisionist
VERSUS
Puneet Kochhar
S/o Sh. N G Kochhar
R/o 95B, Dena Appartments
Sector-13, Rohini
Delhi- 110085.
.......Respondent
CR No. 294/2018
Date of Institution 25.07.2018
Reserved for orders on 20.08.2018
Judgment announced on 25.08.2018
JUDGMENT
1. This revision petition under Section 397/399 Cr.P.C.
is directed against the order dated 20.07.2018 passed by Ld. MM (NI Act)-01/SW/ Dwarka Courts, New Delhi whereby CR No: 294/2018 Page 1 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 Ld. MM has been pleased to dismiss the application dated 20.07.2018 under Section 311 Cr.P.C. of accused (revisionist herein) for recalling the complainant/CW1 (respondent herein) for further cross examination. Briefly stated facts relevant for the disposal of the revision petition are as under:
2. The aforesaid revision petition arises out of complaint case no. 5003543/2016 under Sections 138 of the Negotiable Instrument Act, titled as Sh. Puneet Kochhar Vs. Sh. Himanshu Gupta filed by the complainant Puneet Kochhar (respondent herein) stating therein that he had cordial relations with the accused (revisionist herein) and the accused approached the complainant (respondent herein) for a friendly loan of Rs. One lac by stating that he was having financial hardship and needed some finance for a short period for promotion of his business and the complainant gave a friendly loan of Rs.
One lac in cash to the accused (revisionist herein) in the month of April, 2016 on different occasions. It is further stated in the complaint that in order to discharge his liability, the accused issued a Cheuqe bearing no. 265673 dated 25.05.2016 for a sum of Rs. One lac drawn on UCO bank, 5100 Grand Trunk Road, Subzi Mandi, Delhi-110007 in favour of the complainant with the assurance that the same will be encashed. It is stated that when the complainant presented the said cheque with his banker for CR No: 294/2018 Page 2 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 encashment, the same was returned dishonoured vide memo dated 28.06.2016 with remarks " funds insufficient". It is further stated in the complaint that thereafter complainant sent a legal demand notice dated 21.07.2016 to the accused which was duly served upon the accused on 26.07.2016 but the accused failed to discharge his liability. Thereafter the complainant filed the aforesaid complaint case under Section 138 of Negotiable Instrument Act against the accused(revisionist herein).
3. In the pre summoning evidence, the complainant examined himself as CW1. The accused was summoned and notice under Section 251 Cr.P.C. was framed against the accused on 04.11.2016 to which accused pleaded not guilty and claimed trial. Thereafter an application under Section 145(2) NI Act to cross examine the complainant was filed by accused on 19.12.2016 which was allowed and the case was fixed for cross examination of complainant for 03.02.2017. Thereafter complainant examined himself as CW1 and adopted his pre summoning evidence as his post summoning evidence and was cross examined in part and his further cross examination was deferred for want of statement of account of complainant and the statement of account of complainant was supplied to the accused on 12.01.2018 and case was fixed for further cross examination of complainant on 22.03.2018. On 22.03.2018 the accused CR No: 294/2018 Page 3 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 sought adjournment as his counsel was unwell and the same was allowed and the accused was given last and final opportunity to cross examine the complainant subject to cost of Rs. 1500/- and the case was adjourned for cross examination of CW1/Complainant on 07.06.2018. On 07.06.2018 the accused again sought adjournment for cross examination of complainant on the ground that his counsel is not available and the Ld. Trial Court was pleased to close the right of accused(revisionist herein) to cross examine the complainant and case was fixed for RCE/SA on 24.07.2018 and thereafter on 20.07.2018 accused ( revisionist herein) filed an application dated 20.07.2018 under Section 311 Cr.P.C. for recalling the complainant for further cross examination which was dismissed by Ld. Trial Court vide order dated 20.07.2018.
4. Aggrieved by the impugned order dated 20.07.2018 by which Ld. Trial Court has been pleased to dismiss the application under Section 311 Cr.P.C. of accused for recalling complainant for further cross examination, the revisionist has filed the present revision petition stating therein that the Ld. Trial Court has passed the impugned orders in arbitrary and illegal manner without considering the facts and law. It is stated in the revision petition that the cross examination of complainant is necessary and essential for just decision/disposal of the case. It is stated in the revision CR No: 294/2018 Page 4 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 petition that cross examination of the complainant was deferred for want of statement of accused which was supplied to him only on 12.01.2018 and time was sought by Ld. Counsel for the revisionist for going through the same and case was adjourned for 22.03.2018 and on 22.03.2018 previous counsel of the revisionist was in Dr. RML Hospital due to illness and adjournment was sought and matter was fixed for 07.06.2018. It is further stated in the revision petition that on 07.06.2018 due to hospitalization from 02.06.2018 to 11.06.2018, previous counsel for the revisionist could not appear. It is stated in the revision petition that non appearance of the counsel for the accused was not deliberate but only because of illness. It is stated in the revision petition that due to non appearance of the counsel for the accused, the right of the accused/revisionist to cross examine the complainant was closed by Ld. Trial Court on 20.07.2018, however, the revisionist has paid the cost imposed by Ld. Trial Court vide oder dated 22.03.2018. It is stated that the application under Section 311 Cr.P.C. of revisionist for recalling complainant for further cross examination was dismissed by Ld. Trial Court by stating that the same is impermissible in view of the provisions contained in Section 362 Cr.P.C.
5. I have heard the parties and perused the records.
6. It is contended by Ld. Counsel for the revisionist that CR No: 294/2018 Page 5 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 case was fixed for cross examination of complainant/CW1 on 22.03.2018 but the accused sought adjournment as his counsel was unwell and the same was allowed subject to cost of Rs. 1500/- and the case was adjourned for cross examination of CW1/Complainant on 07.06.2018 and on 07.06.2018 the cost imposed on 22.03.2018 was paid. It is contended on behalf of revisionist that on 07.06.2018 previous counsel of the respondent could not appear as he remained hospitalized and Ld. Trail Court was pleased to close the right of accused( revisionist herein) to cross examine the complainant. It is contended that in case the accused ( revisionist herein) is not given opportunity to cross examine the complainant, the accused/revisionist will suffer prejudice.
7. Ld. Counsel for the revisionist has relied on the following decisions:
(i) Decision of Hon'ble High Court of Gujarat in Rajeshbhai Chandubhai and Ors. vs. State of Gujarat, 2001 CRI LJ 3039.
(ii) Decision of Hon'ble High Court of Madhya Pradesh in Jagmohan Parashar Vs. State of MP, 2006(3) MPLJ 248, 2006(4) RCR ( Criminal) 83.
(iii) Decision of Hon'ble High Court of Bombay in Sunil S/o Brijlal Chanchlani vs. State of Maharashtra, Crl.
Appeal 348 of 2014 CR No: 294/2018 Page 6 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018
8. The respondent has contended that the accused was given opportunities to cross examine the complainant(respondent herein) but he kept on delaying the matter on one pretext or other and the revision petition has also been filed to delay the matter. The respondent has contended that in case the accused is given further opportunity, the same would cause prejudice to him and would further delay the matter as the accused has already succeeded in delaying the matter.
9. It is contended that the revision petition is not maintainable as the impugned order is an interlocutory order.
10. In Sethuraman Vs. Rajamanickam, Criminal Appeal No. 486-487 of 2009, wherein Hon'ble Supreme Court was pleased to hold:
2. In these appeals, the common order passed by the Learned Single Judge of the Madras High Court in three Criminal Revisions, is in challenge. By the instant order, the Learned Single Judge set aside the three orders passed by the Trial Court dated 26.07.2004 in Crl.M.P. No. 3057 of 2004 in C.C. No. 216 of 2003 and dated 1.4.2004 in Crl.M.P. Nos. 4184 and 4185 of 2004 in C.C. No. 215 of 2003, and allowed those Crl.M.Ps. Shortly stated, the appellant CR No: 294/2018 Page 7 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 herein had filed a criminal complainant under Section 200 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short), complaining therein that a cheque signed by the respondent and given for returning the amount of Rs.2Lakhs, which was a loan, was bounced and inspite of the notice given thereafter, the accused (respondent herein) had failed to return the money. A Trial ensued on the basis of this complaint and the complainant (appellant herein) was examined as a first witness for the prosecution on 24.8.2004. He was cross-examined also. On 20.09.2004, the respondent herein filed applications under Section 91 Cr.P.C. and Section 311 Cr.P.C., seeking directions to produce the Bank Pass Books, Income Tax Accounts and the L.D.S. deposit receipts of the appellant, as also for recalling him for cross-examination. This was objected to by a Reply dated 24.9.2004. The Court passed an order on 1.10.2004, rejecting the applications made by the respondent/accused. The respondent/accused filed Criminal Revisions before the High Court under Section 397 Cr.P.C. and the High Court, by the impugned common order, proceeded to allow the same. It is this order, which has fallen for consideration before us in these appeals.
CR No: 294/2018 Page 8 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018
4. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.
11. Section 397(2) of The Code of Criminal Procedure, 1973 CR No: 294/2018 Page 9 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 reads as under:
Section 397: Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, any may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section
398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
CR No: 294/2018 Page 10 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 (3) XXXXXXXXXXX
12. In Amar Nath and others v. State of Haryana and others, AIR 1977 Supreme Court 2185, Hon'ble Supreme Court was pleased to hold:
6. Let us now proceed to interpret the provisions of S. 397 against the historical background of these facts. Sub-section (2) of S. 397 of the 1973 Code may be extracted thus:
"The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-s (2) of S. 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts CR No: 294/2018 Page 11 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision.
Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against the order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under CR No: 294/2018 Page 12 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.
13. In Madhu Limaye v. State of Maharashtra AIR 1978 Supreme Court 47, Hon'ble Supreme Court was pleased to hold:
10. As pointed out in Amar Nath's case (AIR 1977 SC 2185) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397.
14. In V. C. Shukla v. State through C.B.I., AIR 1980 Supreme Court 962, Hon'ble Supreme Court was pleased to hold:
'It will be important to note that the words 'interlocutory order' used in this sub-section relates to various stages of the trial, namely, CR No: 294/2018 Page 13 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 appeal, inquiry, trial or any other proceeding. The object seems to be to cut-down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it has got a wide and diverse area of jurisdiction inasmuch as it regulates the procedure of trial not only of the large number of offences contained in the Indian Penal Code but also in other Acts and statutes which apply the Code of Criminal Procedure or which are statutes in pari materia the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. Fortunately, however, there are a few decisions which have interpreted the expression 'interlocutory order' as appearing in S. 397 (2) of the Code.
15. In Neelam Mahajan & Anr. Vs. State & Ors., MANU/DE/0871/2016, Hon'ble High Court of Delhi has given guidance for making a distinction between interlocutory order and final order. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra) , Hon'ble High Court has referred to decision in V. C. Shukla v. State CR No: 294/2018 Page 14 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 through C.B.I. and has been pleased to observe:
17. In V.C. Shukla v. State through CBI, 1999 SCC ( Cri) 393, the following propositions were laid:
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2)that the concept of interlocutory order has to be explained, in contradistinction to a final oder. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an oder passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to CR No: 294/2018 Page 15 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order, framing charges, the Act works serious injustice to the accused.
16. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra), Hon'ble High Court has been pleased to observe:
18. Applying these tests to the impugned order, this Court finds that the order permitting the re-
examination of the petitioners is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. Furthermore, it is impossible to spell out the concept of an interlocutory order unless it is understood in contradistinction to or in contrast CR No: 294/2018 Page 16 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 with a final order.
17. In Varun Aggarwal Vs. State of NCT of Delhi & Anr. , Crl. M.C. No. 2424/2017, Hon'ble High Court has been pleased to hold:
1. By way of the present petition filed under Section 482 of The Code of Criminal Procedure, 1973 (hereinafter referred 'Cr.P.C.') the petitioner seeks setting aside of order dated 19.12.2016 in Criminal Complaint No. 4998501/2016, passed by the Metropolitan Magistrate (hereinafter referred as 'MM'), Dwarka Courts, and also order dated 13.04.2017 passed by the Additional Session Judge (hereinafter referred 'ASJ') in Criminal Revision No. 120/2017.
2. The brief facts of the present case are that the complainant lodged a complaint against the petitioner, wherein it was alleged that the petitioner had taken loan from the complainant at the interest rate of 12% p.a, which is to be repaid by him within a period of one year.
On the expiry of the aforesaid period, he approached the petitioner for return of money in lieu of which the petitioner issued a post dated cheque bearing no. 858476 dated 25.05.2012. On 26.05.2012, when the cheque was presented for encashment in the bank, the same was dishonored. Therefore, the complainant lodged the complaint under Section 138 Negotiable Instrument Act,1881 against the petitioner. During trial, the concerned court allowed the plea of the petitioner/accused vide order dated 12.05.2016, to place on record the FSL report of the alleged conversation with the complainant along with the transcript. However, vide CR No: 294/2018 Page 17 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 order dated 19.12.2016, the petitioner could not file the Forensic report, on account of which the court closed the right of the petitioner for the examination of the Forensic Expert. The said order was challenged by the petitioner through a Criminal Revision No. 120/2017, before the Special Judge, Dwarka, who dismissed the same on the ground of maintainability of the said revision under Section 397(2). Hence, the present petition. Xxxxxxxxxx xxxxxxxxxx
8. The petitioner, then, filed a Criminal Revision No. 120/2017 against the order dated 19.12.2016, 09.01.2017 and 18.01.2017, and the order of the said Revision court was pronounced on 13.04.2016 wherein the same was rejected by the learned ASJ on the pretext that: "In view of the decision in Neelam Mahajan & anr. vs state & Ors. , Manu/DE/0871/2016, there is no force in the contention of revisionist that impugned order is not an interlocutory order merely because it disposes of an important aspect of the course of proceedings. Consequently, the revision petition thereby praying for allowing the revisionist to bring on record the Forensic Expert Report and for examining the expert as a defence witness is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed."
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10. As far as order dated 13.04.2017 passed by the learned ASJ is concerned, it is rightly viewed by the said court that order dated 19.12.2016, 09.01.2017 and 18.01.2017 setting aside the revision petition being CR No: 294/2018 Page 18 of 19 D.O.J. 25.08.2018 Himanshu Gupta Vs. Puneet Kochhar CR No: 294/2018 interlocutory in nature and the same cannot be challenged in a revision petition and is liable to be set aside as per the settled proposition of law in that regard.
18. In view of the decisions in Neelam Mahajan & Anr. Vs. State & Ors. (Supra) and Varun Aggarwal Vs. State of NCT of Delhi & Anr. ( supra), there is no force in the contention of revisionist that impugned order is not an interlocutory order merely because it disposes of an important aspect of the course of proceeding. Consequently, the revision petition thereby praying for further cross examination of complainant/CW1 is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed.
19. Revision File be consigned to record room.
20. A copy of this judgment be sent to Trial Court for information.
Announced in the open (HARISH DUDANI) Court on 25.08.2018 Special Judge,( PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed by HARISH HARISH DUDANI
DUDANI Date:
2018.08.25
15:10:36 +0530
CR No: 294/2018 Page 19 of 19 D.O.J. 25.08.2018