Delhi District Court
Karan Passi vs Vikas Lakhanpal on 24 August, 2017
-:1:- CR No : 440622/2016
Karan Passi v. Vikas Lakhanpal
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE (PC ACT) (CBI)1
DISTRICT COURTS(SW) DWARKA: NEW DELHI
In the matter of :
KARAN PASSI
S/o Shri Narender Passi
R/o A54, Shankar Garden,
Vikas Puri, New Delhi110 003.
Also at :
C403, Mahendra Apartment,
Vikas Puri, New Delhi. ......... Revisionist
VERSUS
VIKAS LAKHANPAL
S/o Shri Ashok Lakhanpal
R/o Flat No.18, Pocket4,
Sec.12, Dwarka,
New Delhi - 110078.
.......Respondent
Criminal Revision No. 440622/2016
Date of Institution 15.12.2016
Reserved for orders on 16.08.2017
Judgment announced on 24.08.2017
JUDGMENT
1. This is a revision petition under section 397 of Cr.PC.
CR No: 440622/2016 Page 1 of 16 D.O.O. : 24.08.2017
-:2:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal filed by the revisionist against the impugned order dated 21.10.2016 of Ld. MM(NI Act)04, Dwarka Courts, Delhi whereby Ld. MM has been pleased to dismiss the application under section 145(2) of the Negotiable Instrument Act (herein after called as the NI Act) for allowing the crossexamination of complainant (respondent herein) by the accused (revisionist herein). Briefly stated relevant facts for the disposal of the revision are:
2. The revision petition arises out of the criminal complaint case titled as Vikas Lakhanpal v. Karan Passi filed by the complainant(respondent herein) against the revisionist under Section 138 of the NI Act. As per order dated 25.05.2015 of the Trial Court, the complainant(respondent herein) had filed his evidence by way of affidavit alongwith original documents and his statement was recorded and after hearing the complainant(respondent herein) and perusing the documents, Ld. Trial Court was pleased to order for summoning of the accused(revisionist herein). On 26.08.2016, Ld. Trial Court was pleased to frame Notice under section 251 Cr.PC against the accused(revisionist herein), which is as follows:
"Date 26.08.2016 CC No.8269/16 Notice U/S 251 Cr. PC I, Abhishek Kumar, Metropolitan Magistrate, Dwarka, do hereby serve you Karan Passi, S/o Narender Passi, R/o A CR No: 440622/2016 Page 2 of 16 D.O.O. : 24.08.2017
-:3:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal 54, Shankar Garden, Vikas Puri, New Delhi - 110003, with the following notice u/s 251 Cr.P.C.
It is alleged against you that you have taken friendly loan of Rs.2 lacs from the complainant and in order to discharge you liability you have issued a Cheque Bearing No.023172 amounting to Rs.2,00,000/ dated 24.03.2015 drawn on Union Bank of India in the favour of the complainant which was dishonourd vide cheque returning memo dated 27.03.2015 on account of "funds insufficient". Thereafter, the legal notice of demand dated 07.04.2015 was served upon you but you have filed to make the payment within 15 days from the date of the alleged receipt of the aforesaid notice, therefore, you thereby committed an offence punishable U/S 138 of Negotiable Instruments Act and within my cognizance. And I hereby direct you be tried by this Court for the offence u/s 138 Negotiable Instruments Act on the aforesaid notice. The notice is read over and explained to the accused who is questioned as under:
Q1. Have you understood the aforesaid notice? Ans. Yes.
Q2. Do you plead guilty or claim trial? Ans. I do not plead guilty and claim trial. Q3. Did you issue the cheque in question? Ans. Yes.
Q4. Did you receive the legal demand notice as mentioned above? Ans. No. Q5. Is the cheque in question bearing your signatures? Ans. Yes but the particulars are not filled by me. Q6. Do you have anything else to say in your defence? Ans. The complainant was known to me and he used to visit my office. I used to keep blank signed cheque in my office and the same was stolen by the complainant from there. I have never taken any loan from the complainant and I do not owe any liability towards him.
RO & AC sd/ (ABHISHEK KUMAR) MM (NI ACT)/DWARKA/ 26.08.2016"
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3. As per order dated 26.08.2016 of the Ld. Trial Court, ld. Counsel for the accused(revisionist herein) submitted that he wishes to file an application under section 145(2) of the NI Act and the case was adjourned for filing the application under section 145(2) of the NI Act for 15.10.2016. Again on 15.10.2016, the accused(revisionist herein) requested for adjournment for filing the application under section 145(2) of the NI Act and the case was adjourned to 21.10.2016 for filing of the application under section 145(2) of the NI Act. On 21.10.2016, the accused(revisionist herein) filed an application under section 145(2) of the NI Act dated 20.10.2016 and the Ld. MM was pleased to dismiss the same by the impugned order dated 21.10.2016. Aggrieved by the said order dated 21.10.2016 whereby the application under section 145(2) of the NI Act dated 20.10.2016 of the accused(revisionist herein) was dismissed by the Ld. MM, the accused(revisionist herein) has filed the present revision petition stating that Ld. Trial court has failed to appreciate that the complainant (respondent herein) has falsely implicated the accused(revisionist herein) in the complaint case under section 138 of the NI Act which is pending in the Trial Court. It is further stated in the revision petition that the Trial court has not appreciated that the accused(revisionist CR No: 440622/2016 Page 4 of 16 D.O.O. : 24.08.2017
-:5:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal herein) had not taken money from the respondent and the respondent had stolen the cheque from the office of the accused(revisionist herein) which was blank. It is further stated in the revision petition that the Trial court has not correctly appreciated the ratio of judgment in Rajesh Aggarwal v. State & Anr., Crl. MC No.1996/2010 & Crl. M. A. No.7672/2010.
4. I have heard the Ld. Counsels for the parties and perused the record.
5. The contention of the Ld. Counsel for the revisionist is that after examination of the complainant(respondent herein) it was a natural right of the accused (revisionist herein) to cross examine the complainant in order to prove his defence as pleaded by him that the cheque in question was stolen by the complainant (respondent herein) from the office of the accused (revisionist herein). Ld. Counsel for the accused (revisionist herein) has contended that the decision in case of Rajesh Aggarwal v. State & Anr.(supra) has not been correctly appreciated by the Trial Court. Ld. Counsel for the accused (revisionist herein) has placed reliance on the decision in Indian Bank Association & Ors. v. Union Bank of India & Ors., IV (2014) SLT 224.
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Karan Passi v. Vikas Lakhanpal
6. Ld. Counsel for the complainant(respondent herein) has contended that after framing of notice under section 251 Cr.PC, the Trial Court was not under obligation to adjourn the case for filing the application under section 145(2) of the NI Act as after framing notice under section 251 Cr. PC, the accused (revisionist herein) was supposed to file application under section 145(2) of the NI Act immediately but the accused (revisionist herein) took the adjournments for filing the application under section 145(2) of the NI Act and thereafter, the application under section 145(2) of the NI Act dated 20.10.2016 filed by the accused (revisionist herein) did not disclose the points on which the accused (revisionist herein) wanted to cross examine the complainant(respondent herein). Ld. Counsel for the complainant(respondent herein) has contended that the decision in Indian Bank Association & Ors. v. Union of India & Ors(supra), as relied upon by the accused (revisionist herein), is also of no help to him as in the said case also, Hon'ble Supreme Court has held that after framing of notice under section 251 Cr.PC, application under section 145(2) of the NI Act has to be filed for recalling the witness.
7. As per record after framing of the notice under CR No: 440622/2016 Page 6 of 16 D.O.O. : 24.08.2017
-:7:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal section 251 Cr.PC on 26.08.2016, the accused (revisionist herein) was questioned by the Ld. MM regarding his defence to which the accused (revisionist herein) answered by stating that the complainant (respondent herein) was known to him and used to visit his office and the blank signed cheques were stolen by the complainant (respondent herein) from his office and he had never availed any loan from the complainant. Thereafter, Ld. MM pleased to adjourn the case for 15.10.2016.
8. On 21.10.2016, the accused (revisionist herein) filed an application under section 145(2) of the NI Act dated 20.10.2016 stating therein that he has never taken any loan from the complainant and the cheque in question was stolen by the complainant(respondent herein) from the office of accused (revisionist herein) and the accused (revisionist herein) has no liability to pay the amount of cheque to the complainant. After hearing both the parties, Ld. MM was pleased to pass the following order:
"21.10.2016 Present: Sh. J.P. Singh, LD. Counsel for the complainant. Accused in person.
Accused has filed an application u/s 145(2) N.I. Act. Copy supplied to the counsel for the complainant. It is submitted by the counsel that the application u/s 145(2) N.I. Act in compliance to the Rajesh Aggarwal judgment and the application is also not supported by affidavit.
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Karan Passi v. Vikas Lakhanpal
I have seen the application and also keeping the mandate of the judgment of Rajesh Aggarwal, the application must have been filed on the date when the notice was framed. However, the opportunity was given to the accused to file the application on next date. Accused did not filed the application for the past 2 hearings. The only defence raised in the application is the defence disclosed during the framing of notice. The defence of the accused is that the cheques have been stolen from his office and the same has been misused by the complainant. The defence raised by the accused can be proved by himself by leading evidence to that effect and there is no requirement of the cross examination of the complainant.
Therefore, the application of the accused stands dismissed and the matter is proceeded to defence evidence.
List for D.E. on 09.11.2016.
sd/ (ABHISHEK KUMAR) MM(NI ACT)04, DWARKA/21.10.2016"
9. In Rajesh Aggarwal v. State & Anr.(Supra), Hon'ble High Court has been pleased to issue various guidelines for expeditious disposal of the cases under Section 138 NI Act.
10. In Rajesh Aggarwal v. State & Anr.(Supra), Hon'ble High Court has been pleased to hold:
5. In order to ensure that the cases u/s 138 NI Act are tried before the Court of MM/JM in an expeditious manner, Legislature provided for summary trial. Section 145 of NI Act provides that evidence of complainant may be given by him by way of affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court. This also CR No: 440622/2016 Page 8 of 16 D.O.O. : 24.08.2017
-:9:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal makes clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are god enough to be read in evidence at both the stages i.e. presummoning stage and the post summoning stage. The complainant is not required to be recalled and reexamined after summoning of accused unless the MM passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under section 145(2) of NI Act suo moto by the Court. Section 145 of NI Act reads as under:
145. Evidence on affidavit - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution of the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
XXXXXXX XXXXXXX
7. The difference between summary trial and summon trial is thus obvious. In summary trial after the accused is summoned, his plea is to be recorded under section 262(g) of Cr.P.C. and his examination if any can be done by MM and a finding can be given by the court under section 263(h) of his examination. The same procedure is to be followed by the MMs CR No: 440622/2016 Page 9 of 16 D.O.O. : 24.08.2017
-:10:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal for offence of dishonour of cheuqe. If proviso a, b & c to Section 138 N.I. Act are shown to have been complied with, technically the commission of offence stands completed. It is for the accused to show that no offence could have been deemed to be committed by him for some specific reasons & defenes. He cannot simply say" I am innocent" or I plead not guilty".
11. In Rajesh Aggarwal v. State & Anr. (Supra), Hon'ble High Court has laid down the trial procedure for offences under Section 138 NI Act which is to be followed as:
17. The summary trial procedure to be followed for offences u/s 138 NI Act would thus be as under:
Step I : On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint & documents and if commission of offence is made out, take cognizance & direct issuance of summons of accused, against whom case is made out.
Step II : If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 Cr.P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence.
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Karan Passi v. Vikas Lakhanpal
Step III : If there is an application u/s 145(2) of N.I.
Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant.
Step IV : To hear arguments of both sides.
Step V : To pass order/judgment.
12. In Rajesh Aggarwal v. State & Anr. (Supra).
Hon'ble High Court has been pleased to direct that the accused must disclose to the Court as to what is his defence on the very first hearing when the accused appears before the Court and only after disclosing his plea of defence he can make an application that the case should not be tried summarily but as a summon trial case and this application must disclose the defence of the accused and the reasons why he wants the case to be tried as a summon trial.
13. In Rajesh Aggarwal v. State & Anr. (Supra) Hon'ble High Court has been pleased to hold :
9. xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx I, therefore, consider that the proper procedure to CR No: 440622/2016 Page 11 of 16 D.O.O. : 24.08.2017
-:12:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal be followed by MM is that soon after summoning, the accused must be asked to disclose his defence & his plea should be recorded. Where an accused takes no defence and simply says " I am innocent", there is no reason for the MM to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there.
In a summary trial, a complainant or his witness cannot be recalled in the court for cross examination only for the sake of pleasure. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross examined only if the accused makes an application to the court as to on what point he wants to cross examine the witness(es) and then only the court shall recall the witness by recording reasons thereto.
14. The perusal of the application under section 145(2) of the NI Act dated 20.10.2016 shows that in the said application the accused (revisionist herein) has reiterated the defence which was raised by him while he was questioned by Ld.MM at the time of framing of Notice under section 251 Cr.PC. In the order dated 21.10.2016, Ld. MM has been pleased to observe that the CR No: 440622/2016 Page 12 of 16 D.O.O. : 24.08.2017
-:13:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal only defence raised in the application is the defence disclosed during the framing of notice. Ld. MM has also been pleased to observe that the defence raised by the accused can be proved by him(accused) by leading evidence to that effect and there is no requirement of the cross examination of the complainant.
15. In Rajesh Aggarwal v. State & Anr.(Supra) Honb'e High Court has been pleased to hold that Ld. MM is required to pass a specific order as to why the complainant has to be recalled and such an order is to be passed on an application made by the accused or under section 145(2) of NI Act suo moto by the Court.
16. In Rajesh Aggarwal v. State & Anr.(Supra) Honb'e High Court has been pleased to hold :
"11. The trial under section 138 of NI Act cannot be carried like any other summons trial under IPC offences. The documents placed on record of the Court about the dishonour of cheque are the documents from banks and unless the accused says that these documents are forged, or he had not issued the cheque at all, he did not have any account in the bank, the cheque was not signed by him, the cheque book was forged by the CR No: 440622/2016 Page 13 of 16 D.O.O. : 24.08.2017
-:14:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal complainant or other similar claim, the evidence of the complainant about dishonour of cheque cannot be questioned, nor the complainant can be asked to depose before the court again."
17. The contention of the Ld. Counsel for the revisionist is that it is the natural right of the revisionist to crossexamine the complainant(respondent herein). The Ld. Counsel for the accused (revisionist herein) has placed reliance on the decision in Indian Bank Association & Ors. v. Union of India & Ors. (supra). In Indian Bank Association & Ors. v. Union of India & Ors.(supra), Hon'ble Supreme Court was pleased to refer the case of Rajesh Aggarwal v. State & Anr.(supra) and was pleased to hold:
"21. xxxxxxxxx DIRECTIONS:
(1) xxxxxxx (2) xxxxxxx (3) xxxxxxx (4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251, Cr. PC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section145(2) for re-calling CR No: 440622/2016 Page 14 of 16 D.O.O. : 24.08.2017
-:15:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal a witness for cross-examination.
(5) The Court concerned must ensure that examination-in-chief, cross-examination and re-
examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court."
18. In Indian Bank Association & Ors. v. Union of India & Ors.(supra), Hon'ble Supreme Court has also been pleased to hold that after framing of notice under section 251 Cr.PC, the case is to be fixed for Defence Evidence unless an application is to be made by the accused under section 145(2) for recalling a witness for crossexamination. Thereafter, Hon'ble Supreme Court has been pleased to give directions regarding conclusion of examination, crossexamination and re examination of the complainant within three months of assigning the case.
19. In view of the aforesaid discussion, I find no infirmity in the impugned order dated 21.10.2016 of Ld. MM (NI Act)04, Dwarka Courts, Delhi. The revision petition is CR No: 440622/2016 Page 15 of 16 D.O.O. : 24.08.2017
-:16:- CR No : 440622/2016 Karan Passi v. Vikas Lakhanpal devoid of merits and the same is dismissed.
20. TCR be sent back alongwith copy of this judgment to Ld. Trial Court for information and record.
21. The revision file be consigned to Record Room.
Announced in open Court (HARISH DUDANI) today i.e. on 24.08.2017 Special Judge,(PC Act) (CBI)1 District Courts(SW),Dwarka, N Delhi CR No: 440622/2016 Page 16 of 16 D.O.O. : 24.08.2017