Delhi District Court
Muneev Ur Rehman vs Taufiq Ur Rehman on 19 December, 2017
IN THE COURT OF SH. RAJESH KUMAR SINGH ,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Criminal Revision No 344/2017
DLST010078362017
Muneev Ur Rehman ..........revisionist
s/o Sh. Mujeeb Ur Rehman
r/o Near Takiya Sheikh Alauddin Ki Ziarat
Gate no. 2, Peerzada
Moradabad244001
Also at
Kothi Mehvish Bagh
Shadidabad, Sambhal Road,
Moradabad 244001
versus
Taufiq ur Rehman ..........respondent no. 1
r/o Janson India, Wajid house, Prince Road, Moradabad Date of Institution : 27th September 2017 Date of arguments : 14th December 2017 Date of Order : 19th December 2017 O R D E R
1. The petitioner is accused in CC No. 466990/2016 u/s 138 NI Act and the respondent is the complainant. The said case is pending in the Court of Learned Metropolitan Magistrate01/NI Act/SD. The petitioner has filed this petition u/s 397 Cr. PC against order dated 21.08.2017 passed by Learned Muneev ur Rehman vs Taufiq ur Rehman Page no 1 of 11 CR 338/17 Trial Court whereby application of the petitioner u/s 145 (2) NI Act seeking recall of the complainant for crossexamination was dismissed. He has also challenged order dated 11.01.2017. An application u/s 5 of the Limitation Act has also been moved by him.
2. Brief facts necessary for disposal of the present petition are that on 02.09.2016 notice was framed against the petitioner u/s 251 Cr. PC and his defence was recorded. He claimed trial. It was jointly submitted by the parties that they wanted to explore the possibility of settlement and they were referred to Mediation. Matter was adjourned to 06.10.2016. On that day, matter was adjourned to 22.12.2016 as mediation was pending. On 22.12.2016, the matter was transferred. Learned Transferee Court adjourned the matter for 11.01.2017. On 11.01.2017, parties informed Learned Trial Court that mediation had failed. Notice u/s 251 Cr. PC had already been framed on 02.09.2016. Learned Metropolitan Magistrate noted that no application u/s 145 (2) NI Act was moved, and therefore, adjourned the matter to 24.04.2017 for defence evidence.
3. On 24.04.2017, Learned Metropolitan Magistrate was on leave and the matter was adjourned to 11.07.2017. On 11.07.2017 also, the matter was adjourned to 21.08.2017 as Learned Metropolitan Magistrate was on leave. On 21.08.2017, the application moved by the petitioner u/s 145 (2) NI Muneev ur Rehman vs Taufiq ur Rehman Page no 2 of 11 CR 338/17 Act was taken up for consideration. According to the petitioner, the said application was moved on 11.01.2017 itself whereas according to the respondent, the application was filed on 24.04.2017. Learned Trial Court observed that vide order dated 11.01.2017 matter had already been listed for DE and he had no power to review the order. Relying upon the judgment by Hon'ble Supreme Court in the matter of Adalat Prasad vs Rooplal Jindal and ors. (2004) 7 SCC 338, application u/s 145 (2) NI Act was dismissed.
4. In the application for condonation of delay in respect of challenge to order dated 11.01.2017, it is stated by the petitioner that on 11.01.2017, the petitioner was asked to file application u/s 145 (2) NI Act. Learned counsel sought time, however, Learned Metropolitan Magistrate closed the right of the petitioner in view of judgment by Hon'ble Delhi High Court in matter of Rajesh Aggarwal vs State 171 (2010) DLT 151. On 11.01.2017 itself, the petitioner moved the application u/s 145 (2) NI Act which was listed for 24.07.2017. It is further stated that the petitioner was under the belief that his application u/s 145 (2) NI Act would be allowed and therefore, did not file the petition in time against order dated 11.01.2017.
5. The averments made in the application u/s 5 of Limitation Act are strongly opposed by Learned counsel for the respondent. Learned counsel for respondent submits that deliberate false statement has been made that Muneev ur Rehman vs Taufiq ur Rehman Page no 3 of 11 CR 338/17 application u/s 145 (2) NI Act was filed on 11.01.2017. The application u/s 145 (2) NI Act is dated 24.07.2017, copy of the application was supplied to Learned counsel for respondent on 24.07.2017 and the Court fee stamp affixed on the application is also dated 24.07.2017.
6. Learned counsel for the respondent has strongly opposed the petition on the ground of limitation as well as on merit. Learned counsel for respondent has also filed written submissions. I have considered the arguments of Learned counsel for the parties and I have perused the record.
7. In support of his arguments, Learned counsel for petitioner has relied upon judgment by Hon'ble Delhi High Court in the matter of Harpreet Singh vs State (Govt. of NCT of Delhi) and anr. 2015 Lawsuit (Del) 79 and he has also relied upon judgment by Hon'ble Supreme court in the matter of Indian Bank Association and others vs Union of India (UOI) and ors. MANU/SC/1391/2013 which was cited at bar by Learned counsel for the respondent. Apart from Indian bank Association case (supra), Learned counsel for the respondent has relied upon judgment by Hon'ble Supreme Court in the matter of Meters and Instruments pvt. Ltd. and ors vs Kanchan Mehta MANU/SC/1256/2017, judgment by Hon'ble Delhi High Court in the matter of Rajesh Aggarwal vs State and anr. 2010 SCC Online Del. 2511 and another judgment by Hon'ble Delhi High Court in the matter of Muneev ur Rehman vs Taufiq ur Rehman Page no 4 of 11 CR 338/17 Amardeep vs State of Delhi MANU/DE/0106/2015.
8. Learned counsel for respondent submitted that petitioner has failed to disclose sufficient reason for condonation of delay and the delay cannot be condoned in view of deliberate false statement made by the petitioner. He further submitted that the application u/s 145 (2) NI Act was to be moved at the time of framing of notice u/s 251 Cr. PC and the clock cannot be turned back. He has drawn my attention to the directions given by Hon'ble Supreme Court in paragraph 20 (4) of the Indian Bank Association case (supra) in support of his submission that the application u/s 145 (2) NI Act has to be moved at the stage of framing of notice itself.
9. The contention of the petitioner that the application u/s 145 (2) NI Act was moved on 11.01.2017 itself is not supported by the record. The application is dated 24.07.2017 and copy of the application was supplied to Learned counsel for respondent on 24.07.2017. The stamp affixed on the application is also dated 24.07.2017. The reason given by the petitioner for delay in fling the revision petition against order dated 11.01.2017 is that he was hoping that his application u/s 145 (2) NI Act would be allowed. It is stated in the petition that on 11.01.2017, the petitioner had requested Learned Trial Court for time to move the application u/s 145 (2) NI Act. No such prayer is mentioned in the order sheet dated 11.01.2017. In the presence of Muneev ur Rehman vs Taufiq ur Rehman Page no 5 of 11 CR 338/17 petitioner, Learned Trial Court adjourned the matter for defence evidence as no application u/s 145 (2) NI Act had been moved.
10. In Indian Bank Association case (supra), Hon'ble Supreme Court has given the directions which are to be followed by the trial Courts while trying matters u/s 138 NI Act and the directions are in para 20 of the judgment. Direction (4) provides that after framing of the notice u/s 251 Cr. PC to enable the accused to enter his plea of defence, the case should be fixed for defence evidence unless an application u/s 145 (2) NI Act is moved for recalling a witness for crossexamination. In the same judgment, Hon'ble Supreme Court has also observed in para 18 that the power u/s 145 (2) NI Act can be exercised by the trial Court on an application of the accused or suo moto. Here we are not concerned with suomoto exercise of the power by Learned Trial Court. If the petitioner wanted to crossexamine the complainant/respondent, the application u/s 145 (2) NI Act had to be moved. Admittedly, the application was not moved when the notice u/s 251 Cr. PC was framed.
11. Once specific order listing the matter for defence evidence was passed by Learned Trial Court on 11.01.2017, there was no justification to wait if at all the petitioner wanted to challenge order dated 11.01.2017. It is also to be noted that the order passed by Learned Metropolitan Magistrate on Muneev ur Rehman vs Taufiq ur Rehman Page no 6 of 11 CR 338/17 11.01.2017 is in accordance with the directions given by Hon'ble Supreme Court in Indian Bank Association case (supra) and by Hon'ble Delhi High Court in Rajesh Aggarwal case (supra). Therefore, on the ground of limitation as well as on merit, the prayer of the petitioner against order dated 11.01.2017 is liable to be rejected.
12. Now, I come to order dated 21.08.2017, whereby the application of the accused u/s 145 (2) NI Act was dismissed. Learned counsel for the respondent has not disputed that revision is maintainable against order passed on an application u/s 145 (2) NI Act. The provision u/s 145 (2) NI Act appears like the provision u/s 311 Cr. PC, however, there is difference in two provisions. When the accused makes an application u/s 145 (2) NI act, he seeks recall of a witness, whose presummoning evidence on affidavit has been adopted as postsummoning evidence. The evidence was not recorded in presence of the accused and the first opportunity for him to have the examination i.e. the examination of the witnesses of the complainant in his presence is after framing of the notice. Section 145 (2) NI Act deals with valuable right of the accused and therefore, revision against order passed on an application u/s 145(2) NI Act would be maintainable in view of law laid down by Hon'ble Delhi High Court in the matter of Ripen Kumar vs Department of Customs (2000) 88 DLT 541 though, revision is not Muneev ur Rehman vs Taufiq ur Rehman Page no 7 of 11 CR 338/17 maintainable against an order passed u/s 311 Cr. PC as held by Hon'ble Supreme Court in the matter of Sethuraman vs Rajamanickam (2009) 5 SCC 153.
13. In Indian Bank Association case (supra), Hon'ble Supreme Court has held that after summoning of the accused there is no need to recall and reexamine the complainant unless the Magistrate passes a specific order as to why the complainant is to be recalled. In Mandvi Cooperative Bank Ltd. vs Nimesh B. Thakore (2010) 3 SCC 83 Hon'ble Supreme Court has held that when an application u/s 145 (2) NI Act is moved, the Court has to recall the complainant and his witnesses for crossexamination. Learned counsel for respondent also submitted that when an application u/s 145 (2) NI Act is moved, Learned Trial Court has no discretion and the complainant has to be recalled for crossexamination. However, he submitted that the right of the accused to seek recall of the complainant for crossexamination has to be exercised when the notice u/s 251 Cr. PC is framed. According to Learned counsel for the respondent, the application cannot be entertained and is not maintainable once the matter has been adjourned for defence evidence. The issue whether Learned Trial Court has discretion to allow or not to allow the application u/s 145 (2) NI Act is not before me and therefore, I will not deal with the same. The issue before me is whether the application u/s 145 (2) NI Muneev ur Rehman vs Taufiq ur Rehman Page no 8 of 11 CR 338/17 Act becomes nonmaintainable if it is moved after the matter is adjourned for defence evidence.
14. In a case u/s 138 NI Act, where issuance of the cheque is admitted, onus is on the accused to rebut the presumption u/s 139 NI Act. He can rebut the presumption by leading his own evidence and he can also rely upon the evidence of the complainant to rebut the presumption by the standard of preponderance of probabilities. It may happen that the accused thinks that he can rebut the presumption by his own evidence and therefore, does not move the application u/s 145 (2) NI Act when the notice u/s 251 Cr. PC is framed. However, after his crossexamination or crossexamination of his witnesses, he may feel that there is need to question the complainant on certain points which he might not have expected to be denied by the complainant. Can we say that the accused would be barred from making a prayer u/s 145 (2) NI Act after leading his own evidence? The answer to my mind is in negative. In my view, the accused can still ask for recall of the complainant by moving application u/s 145 (2) NI Act. It is also to be remembered that Court has discretion u/s 311 Cr. PC to recall a witness who has already been examined. The power to recall a witness for cross examination can be exercised at any stage.
Muneev ur Rehman vs Taufiq ur Rehman Page no 9 of 11 CR 338/17
15. If the application u/s 145 (2) NI Act is moved when the matter is listed for defence evidence, Learned Trial Court may allow the same before evidence of accused is taken or may allow the recall of the complainant for crossexamination after recording of the defence evidence. The application cannot be dismissed on the ground that it would amount to review of an earlier order whereby the matter was listed for defence evidence. Section 362 Cr. PC prohibits alternation or review of a judgment or final order. The order by which the matter is listed for defence evidence is neither a judgment nor a final order.
16. In view of above discussion, I am of the view that order dated 21.08.2017 passed by Learned Trial Court is liable to be setaside. The revision petition is dismissed in respect of order dated 11.01.2017 and it is allowed in respect of order dated 21.08.2017. Matter is remanded to Learned Trial Court for fresh decision on the application of the petitioner u/s 145 (2) NI Act. Learned Trial Court may deal with the application as per law. Depending upon what view is taken by Learned Trial Court on the point whether there is discretion in allowing or not allowing the application, Learned Trial Court may decide whether recall of the complainant is to be allowed before taking the evidence of the accused or after that. If Learned Trial Court is of the view that delay has been caused by the accused, Muneev ur Rehman vs Taufiq ur Rehman Page no 10 of 11 CR 338/17 reasonable cost may be imposed. The revision petition is disposed of accordingly.
17. Trial Court Record be returned to the Trial Court/Successor Court alongwith copy of this order.
18. Revision file be consigned to record room.
(announced in the (Rajesh Kumar Singh )
open Court on Special Judge (NDPS)/ASJ
19th December 2017) South District: Saket
Muneev ur Rehman vs Taufiq ur Rehman Page no 11 of 11
CR 338/17