Delhi District Court
Rajender Singh vs . Kamal Gera on 14 March, 2018
Rajender Singh Vs. Kamal Gera
CR No: 439/2017
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBI-I
DWARKA COURTS; NEW DELHI
Rajender Singh
S/o Sh. Khacheru Ram
R/o H. No. WZ 523,
Nangal Raya Village
New Delhi 110046.
................Revisionist
VERSUS
Mrs. Kamal Gera
W/o Sh. Parmeshwar Lal Gera
R/o D1B/3c/Janak Puri
New Delhi-110058.
........Respondent
CR No. 439/2017
Date of Institution 15.09.2017
Reserved for orders on 09.03.2018
Order announced on 14.03.2018
JUDGMENT
1. This is a revision petition under Section 397, 399 Cr.P.C. against the impugned order dated 03.08.2017 passed by Ld. MM (NI Act) -05, South West, Dwarka Court, New Delhi in CC No. 3915/2017 titled as " Kamal Gera Vs. Rajender Singh" whereby Ld. Trial Court has been pleased to close the right of accused(revisionist CR No:439/2017 Page 1 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 herein) to cross examine the complainant ( respondent herein).
2. Briefly stated relevant facts for the disposal of the revision petition are as under:
3. The revision petition arises out of complaint case under Section 138 NI Act bearing CC no. 3915/2017 titled as "Kamal Gera Vs. Rajender Singh " pending in the court of Ld. MM/NI Act-05/SW/Dwarka, New Delhi. It is stated in the complaint case under Section 138 NI Act that the accused (revisionist herein) is known to the complainant (respondent herein) for more than two years being family friend and had cordial relations. It is further stated in the complaint case under Section 138 NI Act that the accused (revisionist herein) approached the complainant ( respondent herein) in the month of January 2016 for a friendly financial help of Rs. 10 lacs as he (accused) was in the need of the same for his daughter's marriage and the accused promised to return the same within a year and the complainant (respondent herein) gave a friendly loan of Rs. 10 lacs to the accused ( revisionist herein).
4. It is further stated in the complaint case under Section 138 NI Act that the complainant (respondent herein) requested the accused (revisionist herein) to return the amount as the marriage of the daughter of the accused could not take place and the accused issued a cheque bearing no. 057054 dated 01.12.2017 amounting CR No:439/2017 Page 2 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 to Rs. 10 lacs drawn on PNB Bank, Naraoji Nagar, New Delhi in favour of complainant (respondent herein) in discharge of his legally enforceable liabilities but on presentation at the complainant's bank, the cheque was returned unpaid with a remark "Kindly Contact Drawer/Drawee Bank and please present again" and thereafter complainant(respondent herein) informed the accused (revisionist herein) of the same and on asking of accused, the complainant again presented the said cheque for payment on 06.02.2017 but the same was again returned unpaid with remarks ""Kindly Contact Drawer/Drawee Bank and please present again" and thereafter complainant tried to contact the accused but he avoided the complainant and on enquiry from the drawee's bank, the complainant found that it is a dormant account and has an insufficient balance in the account and thereafter a legal demand notice dated 12.02.2017 under Section 138 of NI Act was served upon the accused but the accused failed to make the payment on which complaint case under Section 138 NI Act was filed.
5. It is stated in the revision petition that the revisionist had taken a loan of Rs. 5 lacs from Deepak Gera (son of complainant) and the revisionist had mortgaged the second floor of his house against the said loan amount and he (revisionist) had given the cheque in question as security to Deepak Gera and he (revisionist) has already CR No:439/2017 Page 3 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 repaid the entire loan amount and got the property released. It is further stated in the revision petition that the respondent did not return the cheque in question back and the same has been misused by the respondent.
6. It is further stated in the revision petition that the impugned order is bad in law the same has been passed on surmises and conjectures. It is further stated in the revision petition that on account of illness, the revisionist could not appear before Ld. Trial Court and Ld. MM has been pleased to strike off the right of the accused to cross examine the complainant and closed CE.
7. It is further stated in the revision petition that revisionist did not issue the cheque in question in favour of complainant and the respondent has filed the false complaint against him and the revisionist will suffer irreparable financial loss if the revision petition is not allowed.
8. I have heard Ld. Counsel for the revisionist and perused the records.
9. Ld. Counsel for the revisionist has contended that by the impugned order dated 03.08.2017, the right of accused(revisionist herein) to cross examine the complainant was closed. Ld. Counsel for the revisionist has contended that Ld. Trial Court has not appreciated that on account of not being given opportunity to cross examine the complainant, the revisionist will not be able CR No:439/2017 Page 4 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 to prove his defence and his defence would be prejudiced. Ld. Counsel for the revisionist has contended that the order dated 03.08.2017 is not an interlocutory order and has relied on decision in P Sanjeeva Rao Vs. State of AP, 2012 Law Suit(SC) 351.
10. In the impugned order dated 03.08.2017, Ld. MM has been pleased to observe:
It is apparent that the accused is deliberately not appearing before this Court and is prolonging the trial. Upon being asked about the age of the complainant, the complainant has replied that she is more than 60 yrs. Old.
In these circumstances, the conduct of the accused does not inspire confidence in the Court. Already, two days have elapsed for conducting cross-examination. Even on the last date of hearing, the matter had to be adjourned as the accused failed to appear. Infact, even the main counsel did not appear. Today also the accused has entered appearance through a proxy counsel and no effective proceedings have taken place in the present matter for the last two dates. Considering the above as also the fact that the complainant is a senior citizen, the accused cannot be allowed to misuse the provision u/s 205 Cr.P.C.
CR No:439/2017 Page 5 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 Hence, the right of the accused to cross examine the complainant is hereby closed.
11. In Sethuraman Vs. Rajamanickam, Criminal Appeal No. 486-487 of 2009, 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 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 CR No:439/2017 Page 6 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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.
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 CR No:439/2017 Page 7 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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.
12. Section 397(2) of The Code of Criminal Procedure, 1973 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 CR No:439/2017 Page 8 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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.
(3) XXXXXXXXXXX
13. In Amar Nath and others v. State of Haryana CR No:439/2017 Page 9 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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 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 CR No:439/2017 Page 10 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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 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 CR No:439/2017 Page 11 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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.
14. 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.
15. The effect of impugned order on the proceedings has to be seen in arriving at the decision whether it is the interlocutory order or not. The prayer for setting aside the impugned order and to allow the CR No:439/2017 Page 12 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 revisionist to cross examine the complainant/respondent has been made by the revisionist and effect of allowing the revision petition would be that this court will accept the request of the revisionist under Section 311 Cr.P.C. which orders are interlocutory in nature and barred by Section 397(2) Cr.P.C. . The impugned order has not finally determined any of the rights of the parties so as to terminate the proceedings regarding any of the rights of the parties. The impugned order dated 03.08.2017 is an interlocutory order and in view of Section 397(2) Cr.P.C., the same cannot be challenged by way of revision petition. In the circumstances the the decision in P Sanjeeva Rao Vs. State of AP, 2012 Law Suit(SC)
351. as relied by the revisionist is of no help to him.
16. 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, 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 CR No:439/2017 Page 13 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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.
17. In Surendra Kumar Vs. State of Rajasthan( Supra), Hon'ble Rajasthan High Court was pleased to hold:
9. In my considered opinion, the object of criminal trial is to render prompt public justice, to punish the criminals and to see to it that the trial is concluded as CR No:439/2017 Page 14 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 expeditiously as possible before the memory of the witnesses fades out. This court can take judicial notice of the fact that a trend had developed to delay the trial by the accused on one or the other ground after they are out on bail so that ultimately, they are acquitted either by threatening or inducing the witnesses.
Such practice was required to be curbed, therefore, with a view to ensure prompt public justice in the criminal trial, the Legislature in its wisdom introduced two major provisions in Cr.P.C.
(1) Section 397(2) under which revision against any interlocutory order passed in appeal, enquiry, trial or other proceedings was barred and (2) Section 399(3) wherein finality is attached to the order passed by the revisional court and second revision at the instance of same party is barred.
18. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra) , 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 through C.B.I., CR No:439/2017 Page 15 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 ( Supra) 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 the controversy and thereby terminates the CR No:439/2017 Page 16 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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.
19. 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:439/2017 Page 17 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 with a final order.
20. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra) , Hon'ble High Court of Delhi has been pleased to observe:
20. After perusing the impugned order as well as the material placed before this court and in the light of the facts and circumstances of the present case this Court is also of the opinion that every interlocutory order merely because it disposes of an aspect, nay a vital aspect in the course of a pending proceeding even adversely affecting a party for the time being would not be something other than interlocutory.
21. This Court also perused the order passed by the revisional Court holding that the order passed under Section 311 Cr.P.C. is interlocutory order and therefore the same is not revisable and this court finds no reason to disagree with thereto.
21. 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 CR No:439/2017 Page 18 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 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 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).
CR No:439/2017 Page 19 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 Hence, the present petition.
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."
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 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.
22. In view of the decision in Varun Aggarwal Vs. State of NCT of Delhi & Anr. , Crl. M.C. No. 2424/2017, there is no force in the contention of revisionist is 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 CR No:439/2017 Page 20 of 21 D.O.J 14.03.2018 Rajender Singh Vs. Kamal Gera CR No: 439/2017 praying for setting aside the order dated 03.08.2017 and allow the revisionist to cross examine the respondent is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed.
23. Revision File be consigned to record room.
24. A copy of this order be sent to Trial Court for information. TCR be sent back.
Announced in the open (HARISH DUDANI) Court on 14.03.2018 Special Judge ( PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed by HARISH HARISH DUDANI
DUDANI Date:
2018.03.14
14:58:48 +0530
CR No:439/2017 Page 21 of 21 D.O.J 14.03.2018