Delhi District Court
In Re vs Frankfinn Aviation Services Private ... on 5 April, 2018
Crl. Revision No. 426/2017
IN THE COURT OF MS. SMITA GARG,
ADDITIONALSESSIONS JUDGEFTC, WEST,
TIS HAZARI COURTS, DELHI.
CNR No. DLWT010086192017
Crl. Revision No. 426/2017
In re:
Shweta K More
203, C Wing, Ashok Nagar,
Andheri, Mumbai ......... Revisionist
Versus
Frankfinn Aviation Services Private Limited
721, Suneja TowerII, District Centre,
Janakpuri, New Delhi110058 ......... Respondent
Date of filing of revision petition : 19.09.2017
Date on which judgment was reserved : 26.03.2018
Date of pronouncement of judgment : 05.04.2018
JUDGMENT:
1. This revision petition under Section 397 CrPC questions the legality, propriety and correctness of order dated 26.07.2017 passed by Ld. MM03 (NI Act), West District in complaint case under Section 138 of Negotiable Instruments Act (for short, 'the Act') whereby the right of the revisionist to file the application under Section 145 (2) of the Act was closed.
Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 1/11 Crl. Revision No. 426/20172. The brief background relevant for the disposal of the revision petition is that the respondent/complainant instituted the complaint case with regard to the dishonour of cheque of Rs. 25,000/issued by the revisionist/accused, which on presentation was dishonoured for the reason "Stop Payment" and despite service of demand notice dated 16.10.2013, the revisionist had failed to pay the cheque amount. Notice of accusation in terms of Section 251 CrPC was framed on 22.04.2017. On the request of the revisionist, she was granted two week's time to move the application under Section 145 (2) of the Act and the matter was posted for 26.07.2017. Since the revisionist failed to appear on the said date, in addition to issuance of nonbailable warrant against her, the right of the revisionist to file the application under Section 145 (2) of the Act was also closed by the Ld. MM. Aggrieved therefrom, the revisionist is before this court.
3 The impugned order has been assailed on the grounds, interalia, that the counsel for the revisionist could not appear at the call of the case as he had other matters listed before the Hon'ble Supreme Court and District Courts at Patiala House; though the application under Section 145(2) CrPC was ready and was to be filed on 22.04.2017 but the trial court instead of waiting for the Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 2/11 Crl. Revision No. 426/2017 appearance of the revisionist or her counsel, passed the order in the early hours of the day i.e. around 12:00 Noon; the application was not filed earlier as the possibility of settlement was also to be explored on 26.07.2017; the cross examination of the respondent on the plea of defence is necessary to prove the innocence of the revisionist; by proceeding in haste, the trial court has denied the right of fair trial to the revisionist.
4 On the other hand, the counsel for the respondent challenged the maintainability of the revision petition by contending that the impugned order, being interlocutory in nature, is not amenable to revisional jurisdiction in view of bar of subsection (2) of Section 397 CrPC. He placed reliance on Madhu Limaye v. State of Maharashtra, 1978 SCR (1) 749 to contend that nothing comes to finality by virtue of the impugned order and the revisionist is free to lead defence evidence as per her choice and convenience. He submitted that the application under Section 145(2) of the Act is in the nature of application under Section 311 CrPC and thus the revision petition against the dismissal of such an application is not maintainable in view of Sethuraman v. Rajamanickam, 2009 (1) ALD (Cri.) 871 wherein the Hon'ble Supreme Court has observed that:
Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 3/11 Crl. Revision No. 426/2017"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 CrPC, were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) CrPC. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed 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 CrPC for production of documents and other on the application under Section 311 CrPC for recalling the witness were the order of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable."
The counsel for the respondent further submitted that the Hon'ble Supreme Court in Indian Bank Association & Ors. v. Union of India & Anr., AIR 2014 SC 2528 and the Hon'ble Delhi High Court in Rajesh Aggarwal v. State & Anr., 171 (2010) Delhi Law Times 51, while stressing the need for expeditious disposal of the complaint cases under Section 138 NI Act and laying down the guidelines to be followed for the disposal of the cases has specifically held that on the day of appearance of the accused, he should be asked to take notice Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 4/11 Crl. Revision No. 426/2017 under Section 251 CrPC and enter his plea of defence and that unless an application is made by the accused under Section 145(2) of the Act for recalling a witness for cross examination on the said plea of defence, the case should proceed for defence evidence. He contended that since the revisionist failed to move an application not only within the time granted by the trial court but also on the date fixed in the matter with the sole intention was to derail the trial, the trial court rightly closed her right to move the application and posted the case for recording the statement of the revisionist/accused. On the above submissions, it has been urged that there is no infirmity or illegality in the impugned order and therefore, no interference is called for.
5 I have heard the counsel for both the parties and gone through the written submissions filed by them. The trial court record has also been perused.
6 In view of the objection raised to the maintainability of the revision petition by the counsel for the respondent, it would be apposite to firstly deal with the same. Subsection (2) of Section 397 reads thus :
"Section 397 (2). The powers of revision conferred by subsection (1) shall not be Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 5/11 Crl. Revision No. 426/2017 exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
Though there is a prohibition to the exercise of revisional jurisdiction against any interlocutory order but the expression 'interlocutory order' has not been defined in the Code. The expression 'interlocutory order' came up for consideration before Hon'ble Apex Court in Amarnath v. State of Haryana, (1977) 4 SCC 137 wherein it was held that the said expression in Section 397 (2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and that any order which substantially affects the right of the parties can not be said to be an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra, 1978 SCR (1) 749, it was observed that while incorporating the bar of Subsection (2), the intention of the legislature was not to equate the expressions 'interlocutory order' as invariably being converse to the words 'final order' and that there may be an order passed during the course of proceeding which may not be final but yet it may not be an interlocutory order pure or simple. While recognizing that there may be orders which fall in between the interlocutory order and Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 6/11 Crl. Revision No. 426/2017 final order, it was held that the bar of Subsection (2) of Section 397 is not meant to be attracted to such kind of 'intermediate order'. In V.C. Shukla v. State, 1980 SCC (Cri.) 695, it was held that the term 'interlocutory order' used in the Code has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional jurisdiction could be attracted if the order was not purely interlocutory but intermediate or quasifinal.
The above being the position of law, it would not be appropriate to say that an order whereby the right of the accused to move the application under Section 145(2) NI Act to summon the complainant for cross examination on the plea of defence is closed is purely an interlocutory order so as to attract the bar of Subsection (2) of Section 397 CrPC. Cross examination of a witness, who deposes against the accused facing a criminal trial, is the most valuable and material right of the accused. It is a vital tool in the hands of the accused to impeach the testimony of the witness and to prove his own innocence.
Judgment in Sethuraman's case (supra) relied upon by the counsel for the respondent is clearly distinguishable on facts. In Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 7/11 Crl. Revision No. 426/2017 the said case, the order whereby two applications i.e. an application under Section 91 seeking direction to the complainant to produce certain documents and another application under Section 311 CrPC to recall him for further crossexamination qua the said documents, had been declined, was under consideration. However, in the case on hand, the order under challenge is the one whereby the right of the revisionist to move the application under Section 145(2) NI Act had been closed. Application under Section 311 CrPC for recalling a witness, who has already been cross examined, and an application under Section 145(2) of the Act seeking to summon the complainant for crossexamination on the plea of defence can not be said to be of same nature.
Thus, the court is of the considered opinion that the present revision petition is maintainable.
7 Now coming to the revision petition on merits, there is no gain saying that expeditious disposal of the complaint cases under Section 138 NI Act is the need of the hour. Recognising the same, the guidelines to be followed while dealing with such case have been laid down in Indian Bank Association case (supra) and Rajesh Aggarwal's case (supra). But at the same Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 8/11 Crl. Revision No. 426/2017 time, it must also be kept in mind that the over zealous disposal oriented approach should not be allowed to frustrate the purpose of trial. A perusal of the trial court record shows that the notice of accusations under Section 251 CrPC was framed against the revisionist on 22.04.2017. On the said day, while granting time to the revisionist to move the application under Section 145(2) NI Act, the court also observed that there appeared to be elements of settlement in the matter and for the said purpose, directed the authorized representative of the respondent to appear in person on the next date i.e. 26.07.2017 at 12:00 (Noon). Since the revisionist failed to appear on 26.07.2017, the court not only ordered for issuance of non bailable warrants against her but also proceeded to close her right to file the application under Section 145(2) NI Act.
The counsel for the revisionist has submitted that he had reached the court on 26.07.2017 at about 12:30 PM with the application under Section 145(2) of the Act but by that time, the impugned order had already been passed by the trial court. Though the time at which the impugned oder had been passed is not reflected in the court proceedings conducted on 26.07.2017 but since on the previous date, time had been fixed as 12:00 Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 9/11 Crl. Revision No. 426/2017 Noon, it can safely be assumed that the case had been taken up on 26.07.2017 either at 12:00 Noon or thereafter. Considering the fact that the case was also listed for exploring the possibility of settlement, the trial court ought to have waited for the appearance of the revisionist instead of passing the impugned order on the very first call.
8 There is another aspect to the matter. Section 205 and Section 317 CrPC are the only two provisions which provide for the situations in which the trial can be proceeded with in the absence of the accused. Both the provisions mandate that in the absence of the accused, the matter can be proceeded only if he is being represented by a pleader. In the case on hand, as neither the revisionist nor her counsel was present before the court on 26.07.2017 at the time when the impugned order was passed, the trial court could not have proceeded from one stage of trial to another by closing the complainant evidence and posting the matter for recording the statement of the accused/revisionist. The only recourse open with the court was to first secure the presence of the revisionist and then to proceed with the trial. On this account also, the impugned order is bad.
Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 10/11 Crl. Revision No. 426/20179 For the foregoing reasons, the impugned order can not be sustained. The revision petition is accordingly allowed and the order dated 26.07.2017 passed by the Ld. MM is hereby set aside. The revisionist shall, if so advised, file the application under Section 145(2) NI Act within two weeks before the trial court, who shall proceed to decide the same in accordance with law.
With the above direction, the revision petition stands disposed of.
File of the revision petition be consigned to record room.
Digitally signedSMITA by SMITA GARG Date: GARG 2018.04.06 11:38:26 +0530 Announced in the open court (Smita Garg) on 05.04.2018 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi. Shweta K More v. Frankfinn Aviations Services (P) Ltd. Page No. 11/11