Delhi District Court
S/O Late Sh. K.K.Modi vs M/S Modi Rubber Ltd on 16 November, 2019
IN THE COURT OF MS NEELOFER ABIDA PERVEEN
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Date of Institution: 06.08.2019
Decided on: 16.11.2019
Crl. Revision No. 481/2019
Sh. D.K. Modi
S/o Late Sh. K.K.Modi,
R/o 15, Friends Colony (West),
New Delhi-110065 .... Petitioner
Versus
M/s Modi Rubber Ltd. ,
Through its Authorized Representative
Sh. S.K. Bajpai,
Registered Office: 47, DDA,
Shopping Centre, New Friends Colony,
New Delhi110025 ....Respondent
JUDGMENT
C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 1 The instant Criminal Revision Petition assails order dated 31.05.2019 passed by the court of Sh. Pawan Singh Rajawat, Ld. ACMM(Special Acts), Central District, Tis Hazari Court, New Delhi in case titled as "M/s Modi Rubber Vs. D.K. Modi" whereby the application of the petitioner/revisionist for directing the complainant (respondent herein) to follow the due procedure of law in regard to recording of precharge evidence as envisaged under the provisions of Code of Criminal Procedure, 1973 was dismissed by the Ld. Trial Court.
2. Ld. Counsel for the petitioner submits that all criminal courts are bound by the law of the land including substantive law as well as procedural law, and nonadherence to the same leads to vitiation of the trial. That the Ld. Trial Court is conducting the trial in violation of the mandate as has been enumerated in the provision of Section 254 of Cr.P.C which is applicable in the instant matter as the offence stated to have been alleged against the petitioner is summons trial, therefore, the procedure after summoning of the accused and framing of notice u/s 251 Cr.P.C the Court to be adopted is as C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 2 encapsulated in Section 254 Cr.P.C. That all the evidence is to be taken by the court in the presence of the accused and there is no provision for adoption of presummoning evidence by the respondent unless there has been specific legislation making provision of adoption of presummoning evidence in particular kind of cases. That the complainant/respondent did not adduce any evidence before the Ld. Trial Court after summoning of the petitioner and same goes to the teeth of case of the complainant/respondent and in other words, wrong procedure in contradistiction of the scheme of Code of Criminal Procedure has been applied which may result into vitiation of the instant trial, which goes to the root of the matter, and is fatal to the fate of the trial.The procedure as enumerated in Section 254 Cr.P.C that the Ld. Trial Court should not have been bypassed and should have corrected a procedural error as and when brought to the notice of the Ld.Trial Court. That the nonrecording of the postsummoning evidence on oath afresh and by simply adopting the earlier recorded presummoning evidence which was conducted in the absence of the petitioner herein has led to annihilation of well codified procedural law, thereby rendering the proceedings in the instant matter nugatory and futile. That Section 138 of the Indian Evidence Act, 1872 applies to the "evidence" which is to be C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 3 recorded according to the mandate of Section 254 of Cr.P.C. That the order dated 31.05.2019 passed by Ld. ACMM is not an interlocutory order and the instant revision petition is maintainable in light of the judicial dictum as laid down in the case titled as Amar Nath V. State of Haryana" cited as [(1977) 4 SCC 137] where it has been decided by the Hon'ble Supreme Court that the expression interlocutory order in section 397(2) has been used in restricted sense and not in a broad or an artistic sense and merely denotes an order purely interim or temporary in nature which does not decide or touch the important right or liabilities of parties and that any order which substantially affects the right of the parties cannot be said to be an interlocutory order.
3. Ld. Counsel for the respondent on the other hand submits that the impugned order dated 31.05.2019 is an interlocutory order and hence, cannot be challenged by way of a revision petition u/s 397 and 399 of the Cr.P.C, 1973. That the test to determine whether an order is interlocutory or not under the Act, was established in various judgments of the Hon'ble Apex Court including Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd. And Others [(2001) 7 SCC 401].Going by the test so established by the Apex Court, it is C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 4 submitted that the order is interlocutory order as, assuming but not admitting, that the contention of the petitioner/accused is upheld and the revision petition is allowed, it would not result in the culmination of the trial proceedings. The result, assuming the same is allowed, would be that the complainant evidence would have to be conducted afresh and trial will be setback about five years but yet the proceedings will not culminate/conclude. Therefore, the revision petition in itself is not maintainable. It is further contended that the presummoning evidence was closed on 06.07.2012 after examining the sole complainant witness i.e. Sh.S.K. Bajpai, the Authorized Representative (AR) of the respondent/compainant company. On 14.05.2013, notice u/s 251 of the Code was served to the petitioner/accused through his counsel. On 07.03.2014, a request was made by the respondent/complainant to adopt presummoning evidence, a request that went unopposed by the petitioner/accused, rather, time was sought to crossexamine the sole complainant witness. Pursuant thereto, the said witness has been cross examined on several hearing including but not only on 16.11.2015, 20.02.2015, 24.04.2018 etc. The accused, over C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 5 five years down the line, ought not be allowed to raise this belated objection, which is clearly bad in law. That adoption of presummoning evidence as precharge evidence is not unheard of in law and has been duly permitted and in fact, it saves invaluable judicial time. The application filed by the petitioner/accused before the Trial Court although avers that the said adoption is not permitted in law but fails to show how. A complainant may adopt his presummoning evidence as precharge evidence which is evident from the various decision including order of the Hon'ble High Court dt. 19.07.2016 in case titled S.P. Garg V. State & Anr. Bearing CRL.M.C. No.984/2015.
4. Arguments heard. Record perused.
5. The maintainability itself of the revision petition against the order impugned is questioned on the ground that the order impugned is purely interlocutory and in terms of Section 397 and Secstion 399 Cr.P.C, no revision lies against a purely interlocutory order. It would hence be profitable to reproduce the provision itself at the very outsef. Section 397 provides as follows: "397. Calling for records to exercise powers of revision.(1) The High court or any Sessions C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 6 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, and 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 subsection and of section 398.
(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
It emerges from the record that a complaint for commission of offence u/s 630 of the Companies Act 1956, came to be instituted against the petitioner on 17.08.2011. The complainant C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 7 led presummoning evidence and vide order dated 09.10.2012, the petitioneraccused was summoned. Notice u/s 251 Cr.P.C was served upon the accused through Counsel on 14.05.2013 to which the accused / petitioner pleaded not guilty and claimed trial. Matter came to be listed for complainant evidence and on 7.3.2014 the complainant opted to adopt statement recorded of its AR in pre summoning evidence in examination in chief along with the documents tendered except for some of the documents, the accused sought adjournment to cross examine the AR of the complainant company and infact conducted the crossexamination of the AR of the complainant company being examined as CW1, on several dates and thereafter on 3.12.2018 filed an application seeking directions which was dismissed by the Ld. Trial Court on 31.05.2019, the order impugned. There can be no dispute that if the order was in favour of the petitioner, it would not have concluded the proceedings either ways, however what is pertinent is that besides assailing the correctness of any finding, sentence or order recorded or passed, revisional jurisdiction may also be exercised to examine the regularity of any proceedings. What is agitated in the present revision petition what lies at the very core of the controversy is the propriety of the procedure adopted by the Ld. Trial court, hence it need not detain the discussion any further C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 8 as to whether the order impugned in itself is interlocutory or not, where the petition in effect questions the regularity of the procedings before the Ld. Trial Court, grievance having been raised by the petitioneraccused to the adoption of the presummong evidence of the AR of the complainant company as the examination in chief of the AR of the complainant company, in evidence, post summoning.
6. Notice u/s 251 Cr.P.C is served upon the accused for commission of offence rendered culpable u/s 630 of the Companies Act, 1956 which lays down the following:
630. Penalty for wrongful withholding of property.(1) If any officer or employee of a company
(a) wrongfully obtains possession of any property of a company; or
(b) having any such property in his possession wrongfully withholds it or knowingly appies it to purposes other than those expressed or directed in the articles and authorised by this Act;
he shall, on the complaint of the company or any creditor or contributory hereof, be punishable with fine which may extend to [ten thousand rupees].
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 9 to suffer imprisonment for a term which may extend to two years.
The offence being punishable with fine and default punishment extending up to 2 years imprisonment, it being a summons triable case the procedure to be applied and followed is as laid down in Chapter XX of the Cr.P.C under Sections 251 to 259 Cr.P.C.
Section 251 Cr.P.C provides that when in a summons case, accused appears or is brought before Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence and that it shall not be necessary to frame a formal charge. If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may in his discretion, convict him thereupon. In case the accused does not plead guilty and it is not a petty case to be proceeded against under section 253 Cr.P.C, it is mandated under Section 254 Cr.P.C, that the Magistrate shall proceed to hear the prosecution, take all such evidence as may be produced in support of the prosecution and also hear the accused and take all such evidence as he produced in his defence and if the Magistrate upon taking all the evidence u/s C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 10 254 Cr.P.C and as such further evidence if any as he may on his own may cause to be produced finds the accused not guilty, he shall record the order of acquittal, and in case he finds the accused guilty shall pass sentence upon him according to law under Section 255 Cr.P.C.
6. Evidence that is led upon the appearance of the accused after the serving of the notice upon the accused u/s 251 Cr.P.C in the course of summons triable case in the event of the accused pleading not guilty and claiming trial , is the only evidence that forms the foundation for adjudicating upon the culpability of the accused for the commission of the offence. It may be that as a measure of conveinence upon an acquiescence of the accused in case neither party objects that the court admits pre summoning evidence recorded to be read as evidence recorded after the appearance of the accused in order to save time. However, this is not the procedure established by law. Pre summoning evidence does not even belong to Chapter XX of the Code of Criminal Procedure, it is recorded under Section 200 of the Code falling in Chapter XV at the stage of taking cognizance of an offence on a written complaint whence the complainant and any other witness present is examined only to assess if there is sufficient ground for proceeding and thereupon in a summons case, summons for the C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 11 attendance of the accused are issued u/s 204 Cr.P.C. The examination of the complainant u/s 200 Cr.P.C is a preliminary step in the stage of trial contemplated under Chapter XX of the Code. Once the accused appears and is served with the notice of accusation and claims trial, the Magistrate is first to take all the evidence as may be produced in support of the prosecution.
7. Chapter XXIII of the Code applies to Evidence in Enquiries and trials under the Code and Section 273 necessitates that all evidence in the course of the trial is taken in the presence of the accused and where the personal attendance of the accused has been dispensed with in the presence of his pleader. Section 273 Cr.P.C does contemplate constructive presence of the accused but not a stage where the accused is no where in the scene and court is yet to apply its mind if the personal attendance is to be secured at all. The recording of the evidence is proceeded in accordance with Section 274 Cr.P.C which stipulates that in all summons cases trial before a Magistrate, as the examination of each witness proceeds the Magistrate shall make a memorandum of the substance of his evidence in the language of the Court.
It is Chapter X of the Evidence Act that governs the examination of witnesses and Section 138 of the Evidence Act prescribes that the witness shall first be examined in chief, then C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 12 cross examined by the adverse party. Tendering a witness for cross examination without examination in chief is not warranted by law and it does amount to failure to examine the witness at the trial. It is a vestige of the pre 1973 amendment era when a pre committal enquiry was mandated under the Code. Every witness examined by the prosecution in the course of trial must therefore be examined in chief before cross examination commences and the entire examination is to be conducted in the presence of the accused, for it to be rendered as admissible evidence for appreciation of the culpaility or innocence of the accused. Any examination of the complainant recorded before the Magistrate at any stage before the appearance of the accused is not the examination in chief preceding the cross examination in the course of the examination of a witness during trial under Section 254 of the Code such a course would compromise the principles of natural justice and fair trial, for when a witness is examined in the presence of the accused, the accused has the opportunity to observe the demeanour, raise objections to leading questions and relevancy and also admissibility of documents sought to be tendered. The only provision that enables the recording of statements in the absence of the accused and such statements per se admissible in evidence against an accused under certain conditions is under Section 299 of the Cr.P.C.
C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 13
8. In the course of the trial, after notice of accusation is served upon an accused, it is exclusively evidence taken in the presence of the accused that is admissible for assessment of the guilt / innocence of the accused. Tendering the complainant for crossexamination on the examination of the complainant recorded in the absence of the accused at the stage of presummoning is not sanctioned by the Code and is a procedural irregularity capable of vitiating the trial for causing prejudice to the rights of the accused though not enemurated as one of the irregularties that per se vitiate trial under any of the subsections of Section 461 Cr.P.C. Trial is to be conducted as per the procedure enshrined and trial court is mandated to follow the procedure laid down. The procedure enshrined cannot be defeated even by agreement. Such deviations do not enjoy the backing of the codified law though as pointed out by the Ld. Counsel for the respondent not unheard of. It is not a mere technical formality that may be circumvented on acquiescence.
The procedure of adopting the presummoning statement of a witness as examination in chief in the course of the trial and submitting the witness for cross examination on such examination in chief is not a procedure warranted by law, this is so far as the procedural aspect of the matter before me is concerned.
C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 14
9. There is however an equally important aspect of the matter and that is the aspect of delay. If the procedural lapse is a meaty issue, procedural delay is also a weighty consideration.
The complaint is instituted on 03.10.2011, pre summoning evidence is led on 06.07.2012 and accused summoned vide order dated 19.10.2012, the accused appeared through Counsel on 19.10.2012 and notice of accuastion was served on the accused through Counsel on 14.5.2013 and as the accused claimed trial, matter came to be listed for complainant's evidence for 27.07.2013. Thereafter, on 7.03.2014 statement was made on behalf of the complainant that the complainant wants to adopt the pre summoning evidence. This statement was made by the complainant in the presence of the accused through Counsel on 07.03.2014. Accused did not object to the leave sought by the complainant and sought time to cross examine CW1.
The complainant company has examined its AR as CW1 on 09.01.2015. The CW1 has adopted on S.A. the examination in chief at the presummoning stage recorded on 06.07.2012 and has relied on documents and statements made therein in entirety except documents Ex.CW1/13 to 28A, which do not constitute the part of the record. The accused on the same day began to cross examine CW1. Thereafter, on 20.05.2015 also CW1 is cross C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 15 examined on behalf of the accused. CW1 is cross examined at considerable length on 24.05.2018. Instead of coming forward to conclude the cross examination of CW1, whatever part remained of it, the accused on 03.12.2018 filed an application calling upon the complainant to follow the procedure and first get recorded the examination in chief ironically after having conducted the cross examination on more than one occasions.
10. The application calling upon the complainant to follow the procedure established by law is filed by the petitioner on 03.12.2018 i.e. after four years and 9 months of the permission accorded to the complainant to adopt the presummoning statement into evidence as examination in chief. The accused chose not to object to adoption of the presummoning statement of CW1 as examination in chief on 07.03.2014 and accepted the adoption of the statement of CW1 as examination in chief. Thereafter, the accused has conducted the cross examination of CW1 which is deferred more than once over the period of 4 years that the examination of CW1 was dragged on. CW1 infact has been over this period subjected to lengthy cross examination. The accused/petitioner has not explained the blatant delays and laches on the part of the accused. It is on account of such delay and laches on the part of the accused, the petitioner before me that it becomes C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 16 essential to consider if the adoption of the presummoning statement as examination in chief in the facts and circumstances of the present case has caused any irreparable prejudice to the accused.
11. The complainant Modi Rubber Ltd. is a public limited company duly incorporated and has instituted the present complaint through its AR authorized vide resolution of Board of Directors. The property in question is bearing no. 56, Friends Colony, West New Delhi. The complainant company alleges that the erstwhile owner of the said property had entered into agreement to sell dated 04.02.1984 with the complainant company for total sale consideration of Rs.55 lacs out of which Rs.48 lacs was paid by the company and further payment of Rs.6 lacs was made subsequently and the balance of Rs.1 lac was to be paid at the time of registration of the Sale Deed. Prior to the purchase thereof company had passed a resolution dated 21.12.1981 for acquisition of land for property in Delhi for providing nonexculsive residential facility to its Chairman for use on his visits to Delhi. The said property came under litigation and therefore to secure its rights, the company had taken tenancy rights from the vendor Arun Kumar Kapoor through the then Chairman and Managing Director of the complainant company namely, Sh. K. N. Modi authorized C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 17 vide Board Resolution dated 23.12.1981. The complainant relies upon several correspondences during the relevant period between the vendor, the company and K. N. Modi. The property was already Mortgaged with Dena Bank and original documents were lying with Bank. The complainant relies upon communications exchanged with the Bank by the vendor for delivery of the title documents to the complainant, besides communications issued by K. N. Modi in respect of the said property indicating that it is the company that has acquired rights, title and interest in the said property. Reconstruction was also undertaken by the company. Sh. K. N. Modi, seized to be the Chairman and Managing Director of the company w.e.f. 24.01.1989 upon his resignation accepted by the Board of Directors. Legal notice was issued on 02.08.2001 calling upon him to handover vacant possession of the said property. In reply to the same, one MOU dated 24.01.1989 entered into members of the Modi family was relied upon. IN 2004 complainant company made a reference before BIFR under SICA to declare the complainantycompany as Sick Industrial Company and it was so declared on 17.05.2006. Rehabilitation of the complainant company was sanctioned by the BIFR on 08.04.2008 and vide order dated 23.02.2010 BIFR discharged the compalainant company from the purview of SICA, its net worth C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 18 having turned positive with direction to implement the unimplemented portion of the Rehabilitation Scheme. Sh. K. N. Modi, continued to remain in illegal possession of the said property and his younger son Sh. D. K. Modi, the accusedpetitioner started staying in the said property with his family in order to take care of his old and ailing father suffering from cancer. Sh. K. N. Modi after a prolonged illness died on 27.05.2010 and thereafter accused / petitioner continued to occupy and wrongfully withhold the possession of the property.
In such facts and circumstances as recounted above, the culpability would have to be adjudicated based upon not spoken words and acts done but the documentary record pertaining to the property in question, the communications exchanged, resolutions of the company and as other documentary evidence relied upon.
12. CW1 is the AR of the complainant company, the nature of the allegations is such that it is primarily the documents on record surrounding the controversy that would in the large part clinch for the complainant the allegations set out in the complaint against the accused. In the facts and circumstances of the present case, therefore, no prejudice as such has occasioned to the accused by the adoption of the presummoning statement of the complainant company by way of examination in chief. On the C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 19 contrary for the considerable delay and unexplained laches on the part of the accused, who proceeded to cross examine the AR of the complainant companyCW1 and infact cross examined CW1 at considerable length on several occasions, setting the clock back by more than 5 years and directing for a de novo examination / cross examination of CW1 would certainly be prejudical to the complainant and infact to the cause of justice as well.
13. The paramount purpose of all procedure is to ensure scrupulous and diligent adherence to the principles of natural justice. Rules of procedure however cannot be permitted to be rendered as unscrupulous ploy in the hands of an accused bent upon playing truant with the proceedings to hold it hostage for years at end and derail the whole process deliberately delaying the proceedings and thereby defeating the ends of justice. It would be a travesty of justice if the, accused after having participated in the proceedings, having accepted the presummoning statement as examination in chief and on the basis thereof exercised his right of cross examination of the witness, not on one but several occasions having cross examined the witness at considerable length could at his whim and fancy on one fine day after lapse of several years be permitted to denounce the procedure and renounce the cross examination conducted of the witness having dragged on the cross C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 20 examination for over 4 years and 9 months and thereby derail the whole proceedings by claiming a de novo examination of the witness.
The present revision petition in effect impugns order dated 07.03.2014 whereby the complainant sought permission to adopt presummoning evidence and the accused sought time to cross examine CW1 instead of objecting to same and matter came to be adjourned for cross examination of CW1. The filing of the application on 3.12.2018 calling upon the complainant to follow the procedure after 4 years and 9 months is a subterfuge in order to cover up for the delay and laches. The petitioner has failed to explain the delay in approaching the court at the very first instance or within any reasonable time and it is on account of delay and laches on the part of the petitioner inordinate and unexplained that the present revision petition is being dismissed.
Trial Court Record be sent back with Copy of the judgment. File of revision petition be consigned to record room.
Announced in the open Court on this 16th day of November, 2019 (Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi C.R.No.481/19 D.K.Modi v. M/s Modi Rubber Ltd. page 21