Delhi District Court
Sh. Mohinder Ratilal Shah vs State & Anr. Page No. 1 Of 8 on 22 October, 2019
IN THE COURT OF SH. YASHWANT KUMAR
DISTRICT & SESSIONS JUDGE, PATIALA HOUSE COURTS,
NEW DELHI
Crl. Appeal Nos. 145/19 to 153/19
Crl. Appeal No. 145/19 (CNR No. DLND010130592019)
Crl. Appeal No. 146/19 (CNR No. DLND010130602019)
Crl. Appeal No. 147/19 (CNR No. DLND010130582019)
Crl. Appeal No. 148/19 (CNR No. DLND010130652019)
Crl. Appeal No. 149/19 (CNR No. DLND010130622019)
Crl. Appeal No. 150/19 (CNR No. DLND010130612019)
Crl. Appeal No. 151/19 (CNR No. DLND010130632019)
Crl. Appeal No. 152/19 (CNR No. DLND010130662019)
Crl. Appeal No. 153/19 (CNR No. DLND010130642019)
1. Sh. Mohinder Ratilal Shah
2. Sh. Amruti Mohinder Shah
Both Partner M/s Popular Plastic Agency
Sita Ram Building B Block
39, D.N. Road Crawford Market
Mumbai 400001
....Appellants
1. State (NCT of Delhi)
Through its Secretary
New Secretariat, ITO
New Delhi
2. Canadian Specialty Vinyls
49, Rani Jhansi Road
New Delhi110055
Through Shikhar Mahajan, Prop.
..... Respondents
Date of filing : 25.07.2019
Date of arguments : 22.10.2019
Date of order : 22.10.2019
Cr.Appeal Nos. 145/19 to 153/19
Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 1 of 8
JUDGMENT
1. Vide this common judgment, I shall dispose off the aforesaid appeals preferred by the appellant against the common impugned order dated 08.03.2019, passed by Ld. MM06, Patiala House Courts, New Delhi, whereby Ld. Trial Court dismissed the application u/s 340 CrPC filed by the appellantsherein/accused therein in complaint cases filed by the respondent No.2herein / complainanttherein.
2. The brief facts, as set out in the aforesaid appeals, are that in the civil suit bearing No. 114/2015 filed by the complainant therein/respondent No.2herein against the appellantherein by virtue of a compromise, appellantsherein/accused handed over cheques, details of which is mentioned in para No. 1 of the aforesaid appeals with the condition that the respondent No.2/complainant/plaintifftherein shall withdraw the aforesaid civil suit. However, on 05.08.2015, no statement was recorded. The appellantherein, after seeing the conduct of the respondent/complainant details of which is mentioned in the present appeal, withdrew from the said compromise and intimated the respondent not to present the cheques in question but the complainant presented the said cheques, which were dishonored. Thereafter, the complainanttherein filed the complaint u/s 138 of NI Act, which is contrary to the provisions of Sections 58, 119, Cr.Appeal Nos. 145/19 to 153/19 Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 2 of 8 138 (a) (b) (c) and 139 of NI Act as the cheques in question were given as a security in the aforesaid civil suit. Accordingly, the appellant filed a separate application u/s 340 CrPC, which was dismissed by way of joint impugned order dt.08.03.2019.
3. Aggrieved by the impugned order, the appellants have preferred the present appeal on the following grounds among others that the Ld. Trial Court could not appreciate the guidelines on the issue u/s 340 CrPC given in the case of Surjeet Singh vs. Balbir Singh, MANU/SC/0416/1996, followed by Iqbal Singh Marwah vs. Meenakshi Marwah and Ors. The Ld. Trial Court did not apply the scheme of the statutory provisions a bit broadly, as Section 195 CrPC deals with three distinct categories of offence which have been described in clauses (a), (b) (i) and (b)(2) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice and (3) offence relating to documents given in evidence. The Ld. Trial Court had erred while not appreciating the facts that the respondent was the holder in due course of all the cheques in the fiduciary capacity and there was no occasion for fresh transactions in a peculiar situation. The respondent No.2 had already admitted the facts qua the receiving of all the cheques in the compromise proceedings in the civil suit No. 114/2015 through the emails and his replies to the application u/s 340 CrPC.
Cr.Appeal Nos. 145/19 to 153/19 Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 3 of 8
4. The respondent No. 2 has filed his reply to the above appeals, which is placed in the other connected appeal bearing CA No. 145/19 and raised the preliminary objections that the present appeal is time barred as the impugned order was passed on 08.03.2019 and the present appeal has been filed on 12.07.2019. The application u/s 340 CrPC was meritless as the respondent No.2/complainant had committed no such act to attract the aforesaid provisions. In reply to the legal grounds, the respondent No. 2 has stated that it is atrocious and frivolous to allege that the respondent No.2/complainant committed any act tantamounting to fabricating false evidence and / or making false declaration in any judicial proceedings before the court of law. The appellant/accused was for a long time cheating the respondent No.2/complainant and feasting on the hard earned money of the respondent No.2/complainant and made a well thought out plan to further cheat the respondent No.2/complainant. The cheques in question were given by the appellant/accused to clear off his outstanding debt towards the respondent No.2 with the pleading to withdraw the ongoing civil suit in that connection, with a clear understanding that the civil suit shall be withdrawn only after he has discharged his liability by honouring the said cheques.
5. I have heard the Ld. Counsel for the appellant, Ld. Addl.
PP for the State/respondent No.1 & Ld. Counsel for the respondent No.2 and have also gone through the impugned order as well as Cr.Appeal Nos. 145/19 to 153/19 Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 4 of 8 materials available on record.
6. The Ld. Counsel for the appellants has argued that the cheques in question were in the possession of the respondent No.2 in fiduciary capacity. The appellants have come in appeal on the points of law and stated that how a cheque may be used for different purposes. As far as civil suit filed by the respondent No. 2 against the appellants is concerned, the same is on different issues. The respondent no. 2 not only committed forgery but also perjury in this regard. The Ld. Counsel for the appellants, in support of his arguments, has relied upon the judgment reported in the case of Iqbal Singh Marwal & Anr. vs. Meenakshi Marwah & Anr. in Appeal (Crl. ) 402 of 20005 decided by Hon'ble Supreme Court on 11.03.2005,
7. The Ld. Addl. PP for the State / respondent No. 1 has opposed the appeals on the ground that the Ld. MM rightly passed the impugned order considering the facts and circumstances of the case.
8. Ld. Counsel for the respondent No. 2 has argued that initially a civil suit was filed for the entire amount of Rs.12,00,000/ and thereafter the appellants proposed for settlement and also cheques in question were given to the respondent No.2 but when they were presented, the same were not encashed since these were dishonored. Therefore, the respondent Cr.Appeal Nos. 145/19 to 153/19 Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 5 of 8 No. 2 filed complaints u/s 138 of NI Act for dishonouring of the cheques. On the one hand, the cheques were given by the appellants to the respondent No.2 and on the other hand, the respondent No. 2 was informed on behalf of the appellants that the cheques may not be presented before the Bank. Therefore, no question arises for committing forgery or perjury by the respondent No.2. Ld. Counsel for the respondent No. 2 further argued whether the respondent No.2 is supposed to follow the directions of the appellants for presenting the cheques in the bank. Therefore, the said appeals are not maintainable.
9. Perusal of the materials placed on record and also the impugned order dt.08.03.2019 reveals that the Ld. MM-06, PHC/ND dismissed the application of the appellants under Section 340 CrPC on the ground that the case is at the initial stage of consideration on notice and it is the case of the complainant that the cheques in question were given against the outstanding amount due from the purchases done by the applicants-appellants herein on credit basis. The Ld. MM also observed that it is an admitted fact that the cheques in question were handed over towards settlement to the civil recovery case instituted by the complainant but the settlement terms could not fructify and the genesis of the said settlement was the outstanding liability of the applicants- appellants herein. Therefore, according to the ld. MM, no occasion for invoking process u/s 340 CrPC appeared to have arisen at that stage.
Cr.Appeal Nos. 145/19 to 153/19 Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 6 of 8
10. Section 340 CrPC provides for an inquiry to be conducted for the offence referred to in clause (b) of Sub-Section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that court or as the case may be in respect of a document produced or given in evidence in a proceeding in that court. This Section also provides for the procedure to be adopted by the Court after such preliminary inquiry.
11. In the present appeals, the appellants are claiming that the respondent No. 2 has committed forgery and perjury of the documents i.e. cheques issued by the appellants to the respondent No. 2. It is pertinent to mention here that as per the case of the complainant-respondent No. 2 herein an amount of Rs.12,00,000/- was to be paid by the appellants to the respondent No.2 for that the respondent No. 2 was compelled to file a civil suit against the appellants for recovery of the said amount. However, as per the above discussed case of the parties, the matter was settled and cheques were issued to the respondent No.2 and when the cheques were presented for encashment in the bank, the same were dishonored due to which the respondent No.2 had no option but to file the complaint u/s 138 NI Act for dishonoring of the cheques in question. The parties are having an opportunity and also rights as per law to present their cases and also to lead evidence in support of their case before the Ld. MM but during the pendency of the aforesaid complaint case u/s 138 NI Act, the accused therein- appellants herein have filed the said application u/s 340 CrPC at Cr.Appeal Nos. 145/19 to 153/19 Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 7 of 8 the initial stage to stall the proceedings of the aforesaid complaint case when the matter was at the initial stage for consideration of notice. Admittedly, the cheques were handed over by the appellants to the respondent No.2. Now, the parties are at liberty to prove their cases before the Ld. Trial Court after leading their evidence as per procedure. The judgment relied upon by the Ld. Counsel for the appellants is distinguishable from the facts and circumstances of the present appeals. Accordingly, these criminal appeals are devoid of any merits and the same are dismissed. This Judgment be kept in criminal appeal bearing No. 153/2019 and the copies thereof be kept in the remaining aforesaid appeals. Trial Court record along with copy of this Judgment be sent back to the Ld. Trial Court and thereafter the present appeal files be consigned to Record Room. YASHWANT Digitally signed by YASHWANT KUMAR KUMAR Date: 2019.10.22 19:41:45 +0530 Announced in open Court (YASHWANT KUMAR) on 22nd day of October 2019 District & Sessions Judge, PHC New Delhi Cr.Appeal Nos. 145/19 to 153/19 Sh. Mohinder Ratilal Shah & Anr. vs. State & Anr. Page No. 8 of 8