Delhi District Court
Rajesh Goyal vs State Of Govt Of Nct Of Delhi on 23 December, 2022
IN THE COURT OF MS. SHIVALI SHARMA,
ADDITIONAL SESSIONS JUDGE - 03: WEST DISTRICT,
TIS HAZARI COURTS, DELHI
CNR No. DLWT010104142022
CR. REV. No. 3612022
PS Punjabi Bagh
IN THE MATTER OF:
Rajesh Goyal
Director RG Residency Pvt Ltd.
S/o Sh. Jai Bhagwan Goyal
R/o Plot no. 32, First Floor,
Road no. 43, West Punjabi Bagh,
New Delhi110026 ....REVISIONIST
VERSUS
1.State of Govt of NCT of Delhi
2.Ankit Midha
S/o Sh. Narinder Kumar Midha
R/o House no. 53, 2nd Floor,
Road no. 42, West Punjabi Bagh,
New Delhi110026 ..RESPONDENTS
Other Details :
Date of Institution : 31.10.2022
Date of Reserving Order : 16.12.2022
Date of Order : 23.12.2022
CRIMINAL REVISION PETITION U/s. 397 Cr. P.C.
Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.1/14
AGAINST IMPUGNED ORDER DATED 15.10.2022 PASSED
BY LD. MM (NI02)/WEST
ORDER
1. The present revision petition has been filed on behalf of the Revisionist Rajesh Goyal, who is accused no.2 before Ld. Trial Court in CC No. 6746/2019 titled as Ankit Midha Vs RG Residency Pvt. Ltd and Anr. challenging the order dated 15.10.2022 passed by Ld. Trial Court directing issuance of process u/s 82 CrPC against the Revisionist. The complaint case pending before Ld. Trial Court is a case under Section 138 N.I. Act. The complainant of the said case is Sh. Ankit Midha i.e. Respondent no.2 herein. For the sake of convenience, parties shall be referred to by their nomenclature before Ld. Trial Court. BRIEF FACTS:
2. Brief facts of the case necessary for disposal of the present revision petition are that a complaint case u/s 138 NI Act was filed by the complainant against two accused persons, accused no. 1 being a company and accused no.2 being its Director namely Rajesh Goyal i.e. the revisionist herein.
3. Presummoning evidence was led in the matter and both the accused persons were directed to be summoned by Ld. Trial Court vide order dated 03.09.2019. The accused persons firstly appeared before Ld. Trial Court on 13.02.2020 and matter was adjourned for framing of notice on 23.03.2020. Thereafter, due to National Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.2/14 Lockdown, the matter was not taken up physically. Ordersheet dated 28.10.2021 of Ld. Trial Court records a direction to the complainant to supply a copy of the complaint to the accused persons in compliance of Section 208 CrPC and the matter was adjourned for framing of notice on 22.11.2021. Exemption was taken by the accused on medical grounds on 22.11.2021. However, thereafter, on the NDOH, accused appeared through VC. Finally, the notice was framed vide order dated 01.06.2022 and admission/denial of documents was conducted while recording the presence of the accused along with his Counsel through VC. On oral submissions, the request of accused u/s 145(2) N.I. Act was also allowed and the matter was listed for crossexamination of the complainant on 18.08.2022. On 18.08.2022, the accused was absent and exempted on an exemption application filed in this regard. The accused was again absent on 13.09.2022 but oral request for exemption was disallowed and NBWs were issued against the accused Rajesh Goyal. On the same day i.e. 13.09.2022, Ld. Counsel for the accused also filed two applications which were listed for reply and arguments on 15.10.2022.
IMPUGNED ORDER:
4. The impugned order dated 15.10.2022 records that accused was absent but the Court was informed that he was appearing through VC. Ordersheet also records that due to technical glitch, VC of the Court was not working. An application for cancellation Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.3/14 of NBWs was filed on behalf of accused Rajesh Goyal which was dismissed vide the impugned order dated 15.10.2022 with a cost of Rs.10,000/ and process u/s 82 CrPC was directed to be issued against him. It is this order which has been challenged in the present revision petition.
GROUNDS OF REVISION:
5. The impugned order is challenged by accused no.2 Rajesh Goyal on the ground that the same is without any reason and ignoring the submissions made in the application for cancellation of NBWs filed on behalf of the accused no.2/ Revisionist herein.
Ld. Trial court had failed to appreciate that offence u/s 138 NI Act is a bailable offence. The impugned order passed by Ld. Trial Court is violative of principles of natural justice, equity and fair play. Coercive process u/s 82 CrPC has been issued against accused no.2/Rajesh Goyal in a bailable offence despite the fact that the appearance of the accused no.2 had been undertaken by his Counsel and his absence on the date of impugned order had nothing to do with the progress of the case and there was no impediment for Ld. Trial Court in proceeding with the case in the presence of the Counsel for Accused no.2/Revisionist herein. Ld. Trial Court has failed to appreciate that the accused no. 2 was present and appearing before the Court through VC however, VC link of Ld. Trial Court was not working due to some technical glitch and the accused no.2 cannot be made to suffer on account of Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.4/14 technical glitch which has nothing to do with him.
6. Even otherwise, his presence was not required on the date of impugned order as the matter was simply listed for reply and arguments on pending applications. Ld. Trial court even failed to appreciate the undertaking given by Ld. Counsel appearing for accused no.2 that he shall not dispute the identity of the witnesses examined during trial and the crossexamination done by his Counsel or the proceedings conducted in his absence in the Court. There was no reason for Ld. Trial Court to insist on physical appearance of accused no.2 as it was neither required nor ordered on the date of impugned order.
7. It is also submitted that the process u/s 82 CrPC has been directed to be issued against accused no.2/Revisionist herein in gross disregard of the provision itself which requires the Court to record its reasons and satisfaction to the effect that the accused has absconded or is concealing himself so that the warrants issued against him cannot be executed. The impugned order nowhere records that any report on NBWs issued against the accused was received by Ld. Trial Court, on the basis of which it concluded that the accused no.2/Revisionist herein had absconded and was concealing himself to avoid execution of warrants against him. Accordingly, the impugned order is alleged to be highly illegal and incorrect which requires interference by this Court. Hence, the present revision petition.
Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.5/14
8. Ld. counsel for the Revisionist has relied upon the following citations in support of the present revision petition:
I) Ajay Kumar Vs Bishnoi and Amul Garbani Vs KEI Industries Ltd. 2015 SCC Online Madras 10397 to stress upon the point that the process of laws should not be used for harassment of the litigants and insistance on the appearance of the parties before the Court need only be if it becomes absolutely necessary for some purpose. II) Tilutima & Ors Vs Ranjeet Rani & Ors. 1992 SCC Online OR 113.
III) Smt. Seeta Kumari Vs Lalit Kumar & Anr. 1990 SCC Online ALL 662.
IV) Sandhya Gupta Vs State of U.P. 2004 SCC Online ALL 487.
V) Bakhar Industries Ltd. Vs Bhiwani Denim & Apparels Ltd. & Ors. (2001) 7 SCC 401.
VI) Puneet Dalmiya Vs CBI Hyderabad 2020 4 SCC Cri
466.
9. The decisions cited above are primarily relied upon to stress upon the point that the concern of criminal courts should primarily be administration of criminal justice and for that purpose, the proceedings of the Court in the case should register progress. Presence of the accused in the Court is not for marking his Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.6/14 attendance just for the sake of seeing him in Court but to enable the Court to proceed with the trial.
10. Ld. Counsel for the Accused no.2/Revisionist herein has also relied upon various decisions of the superior Courts to stress upon the point that provisions of Section 82 (1) and (2) CrPC should be construed strictly and before issuing the process, the concerned court has to record its satisfaction that the accused has absconded or is concealing himself from execution of warrants. Such serious, coercive steps should not be initiated against an accused in a routine manner without following the due process of law. The following decisions have been relied upon in this regard.
i) Sunil Tyagi Vs NCT of Delhi, 2021 SCC Online Delhi 3479.
ii) Sanjay Bhandari Vs State of NCT of Delhi 2018 SCC Online DEL 10203.
iii) Dalmia Resorts International Pvt Ltd. Vs Deepak Gupta, 2002 SCC Online Delhi 538.
iv) Rajesh Ebrahimkupti Majidhabeevi Vs State Govt of NCT of Delhi 2021 SCC Online DEL 4624.
ARGUMENTS OF THE RESPONDENTS:
11. No reply to the revision petition has been filed by the complainant, however, the petition is vehemently argued and opposed by Ld. Counsel for the complainant. It is submitted that the accused no.2/ Revisionist herein is playing hide and seek with Ld. Trial Court. He has never appeared physically before Ld. Trial Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.7/14 court even on one occasion despite repeated directions in this regard. Even, the notice was framed through VC and the bail of the accused was also granted while appearing through VC. No reason was given by accused no.2/Revisionist herein for not appearing physically before the Ld. Trial Court on the date of impugned order. The conduct of the accused no.2/Revisionist herein in not appearing before the Court even at the time of filing of an application seeking cancellation of NBWs issued against him clearly shows that he was disregarding the process of the Court and was claiming as a matter of right that he can appear through VC on each and every date. Ld. Trial Court dismissed the application seeking cancellation of NBWs issued against accused Rajesh Goyal considering the overall facts and circumstances of the case and the previous conduct of Accused Rajesh Goyal. The impugned order is a reasoned order and does not require any interference from this Court. The satisfaction of Ld. Trial court that the accused was deliberately hiding himself to avoid process of law which necessitated issuance of coercive measures against him is also duly recorded in the impugned order dated 15.10.2022.
12. Accordingly, it is submitted that the present revision petiton is without any merits and deserves to be dismissed. JUDICIAL RESOLUTIONS:
13. Before proceeding further, it would be apposite to go through the impugned order. Same is reproduced hereinunder for Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.8/14 the sake of convenience.
"Ct. Cases 6746/2019ANKIT MIDHA VS. RG RESIDENCY PVT LTD.
(Punjabi Bagh) 28.03.2022 Present: Complainant with Ld. Counsel Sh.H.S. Sharma.
Sh. Ashok, Ld. Counsel for the accused.
Accused absent.
It is stated by the Ld. Counsel for the accused that accused is appearing through VC. However, due to technical glitch VC is not working.
Ld. Counsel for the complainant has filed reply to both the applications filed by Ld. Counsel for the accused on LDOH. Copy supplied to Ld. Counsel for the accused.
Put up for arguments on abovesaid applications on NDOH.
Perusal of the record reveals that NBWs were issued against the accused on LDOH.
Ld. Counsel for the accused has filed an application for cancellation of NBWs on behalf of accused Rajesh Goel. However, the accused is not present physically before the Court and the VC of the court is not working due to technical glitch.
It is stated by the Ld. Counsel for the accused that the offence u/s 138 NI Act is bailable offence. It is further stated by the Ld. Counsel for the accused that he undertakes to proceed the trial without any demur or protest and the accused shall not dispute the trial conducted by the counsel. It is further stated by the Ld. Counsel for the accused that the accused would furnish the affidavit to this effect and also to the effect that he would not dispute the identity of the witnesses/crossexamination of the witnesses at any stage of trial. It is further stated by Ld. Counsel for the accused that in Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.9/14 his application, he has mentioned about the judgment of Hon'ble Apex Court in "Vikas Vs State of Rajasthan" and "Inder Mohan Goswami Vs State of Uttranchal & Ors."
The present application is opposed by Ld. Counsel for the complainant on the ground that no ground for nonappearance has been mentioned in the entire application and the accused never appeared before the Court. It is further stated by the Ld. Counsel for the complainant that accused is taking the leverage of the court by not appearing before the Court physically and the court even framed the Notice u/s 251 CrPC through VC.
It is stated by Ld. Counsel for the accused in rebuttal that the purpose of appearance of accused is that the trial shall not be hampered and I already undertake that the trial would proceed even without nonappearance of the accused physically.
Perusal of the record reveals that the accused never appeared before the court physically and taking the liberty of appearance through VC. All the submissions made by Ld. Counsel for the accused shows that accused as a right claiming that he could appear through VC and the court could not direct the physical appearance of the accused. Such kind of conduct of the accused is really deprecable as it is nothing but running the court of law as per his own whims and fancies, which shall not be allowed. Even no reason for nonappearance on LDOH is mentioned in the said application for cancellation of NBWs. Moreover, Hon'ble High Court of Delhi has laid down certain rules/guidelines to be followed by any litigant/counsel to appear through VC and that too in extreme circumstances and not in routine manner. These guidelines were not even followed by the accused or his counsel.
Therefore, the application for cancellation of NBWs against the accused is hereby dismissed with cost of Rs.10,000/ to be paid to the complainant on NDOH.
It appears that accused is deliberately hiding Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.10/14 himself to avoid the process of law. In these circumstances, court is left with no option but to take coercive steps against the accused.
Let proceedings be initiated against the accused u/s 82 CrPc on filing of PF within 7 days from today by complainant returnable for 02.12.2022. Process server is directed to appear in person on the NDOH.
Concerned SHO is further directed that all the guidelines listed in "Sunil Tyagi Vs State of NCT of Delhi"
passed by Hon'ble High Court of Delhi dated 28.06.2021 shall be strictly followed.
Copy of this order be attached alongwith the process.
(MAYANK GOEL) MM (NI02) THC/WEST/DELHI 15.10.2022"
14. Perusal of the above order makes it clear that on the date of the impugned order, there was a technical glitch in the VC of Ld. Trial Court at the end of the Court itself and not at the end of the accused.
15. Perusal of the trial court record also shows that not even on a single date of hearing, the accused no.2/Rajesh Goyal has been directed to appear physically before the Court. Since, there never were any directions, there is no reason to presume that the accused no.2 Rajesh Goyal had deliberately avoided the process of law or was deliberately delaying the matter by not complying with the directions of the Court.
16. Perusal of the record further shows that the matter has not Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.11/14 been delayed due to nonappearance of accused on any date whatsoever. There was no bar on conducting the crossexamination of complainant in the absence of the accused when his exemption application was allowed vide order dated 18.08.2022. The oral exemption of the accused was declined by Ld. Trial court on 13.09.2022 but even the said order does not record that the purpose for which the case was posted on the said date i.e. recording of crossexamination of complainant could not be done due to non appearance of the accused. On the date of impugned order also, Ld. Counsel for the accused specifically stated that he can cross examine the complainant although the accused could not connect through VC and also undertook that the accused shall not dispute the trial conducted in the Court by his counsel or the identity of the witnesses examined. Still, instead of recording the evidence, Ld. Trial Court proceeded to dismiss the application of accused no.2/Rajesh Goyal for cancellation of NBWs that too with a heavy cost of Rs.10,000/ and directed issuance of process u/s 82 CrPC against him.
17. Perusal of application seeking cancellation of NBWs filed on behalf of accused no.2./Rajesh Goyal on 15.10.2022 also shows that it is specifically mentioned therein that the applicant/accused shall not raise any objection to the proceedings of the court conducted in his absence and in presence of his counsel. The application was duly signed by the applicant/accused no.2 Rajesh Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.12/14 Goyal and thus, was a clear undertaking in writing clarifying and bringing on record the fact that although the accused was seeking exemption but he was in no way interested in delaying the matter by not appearing before the Court.
18. Perusal of the entire TCR shows that the NBWs issued against the accused vide order dated 13.09.2022 returnable on 15.10.2022 were never received back by the Court. Accordingly, Ld. Trial Court had no occasion to peruse the report on the warrants and come to a conclusion that the accused was deliberately absconding or concealing himself to evade execution of the warrants. In the absence of any reasons available before Ld. Trial Court to conclude that the accused has absconded, the initiation of proceedings u/s 82 CrPC by Ld. Trial Court was highly improper and against the due process of law.
19. In view of the reasons given above, the impugned order is not sustainable in the eyes of law. It is not only illegal but also improper and passed in gross negligence of the due process of law. Accordingly, the same needs to be set aside forthwith.
20. The present revision petition is accordingly, allowed and the impugned order dated 15.10.2022 is set aside. The NBWs issued against the accused no.2/Rajesh Goyal vide order dated 13.09.2022 as well as process u/s 82 CrPC issued against him vide impugned order dated 15.10.2022 are recalled. His bail bond and surety bonds are restored. The cost of Rs.10,000/ imposed upon accused Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.13/14 no.2/Rajesh Goyal vide the impugned order dated 15.10.2022 is also set aside.
21. Applicant/accused Rajesh Goyal is directed to personally appear before Ld. Trial court as and when directed and in case, he wishes to appear through VC, the VC rules be followed and a request be made at least 24 hours before the date of hearing through email on the court email ID.
22. Ld. Trial Court can consider the request, if any received appropriately and convey the decision to the accused timely for compliance. Ld. Trial Court is also advised to take a lenient view while deciding the applications for exemption of the accused persons keeping in mind the main purpose which is to ensure that trial is proceeded further and is not derailed or delayed because of nonappearance of the parties.
23. With these directions, the revision petition is disposed off as allowed.
24. The TCR be sent back to Ld. Trial Court along with copy of this order.
25. Revision petition file be consigned to record room after due compliance.
Digitally signedAnnounced in open Court SHIVALI by SHIVALI
SHARMA
Dated: 23.12.2022
SHARMA Date: 2022.12.23
11:52:42 +0530
SHIVALI SHARMA
ADDITIONAL SESSIONS JUDGE-03(WEST)
TIS HAZARI COURT/23.12.2022
Rajesh Goyal Vs State of NCT of Delhi & Anr. CR No. 361/2022 Page no.14/14