Delhi District Court
Ajay Kumar Sharma (Vicky) vs M/S. Pepsico India Holdings (P) Ltd on 20 April, 2011
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 28.01.2011
Date of judgment reserved on : 20.04.2011
Date of decision : 20.04.2011
Criminal Revision No. 16 /2010
Ajay Kumar Sharma (Vicky)
Prop. M/s. Evergreen Traders,
230, Patparganj , Mayur ViharI,
Delhi110 091. .... Petitioner / accused
Versus
M/s. Pepsico India Holdings (P) Ltd.,
54,Lower Ground Floor,
World Trade Centre, Barakhamba Road,
New Delhi110 001.
Through its MD / AR ..... Respondent
O R D E R : Ajay Kumar Sharma facing prosecution u/s. 138 of N. I. Act pending before Ld. MM , New Delhi District, PHC, has filed present revision petition against an order whereby the case when fixed for recording prosecution evidence has been directed to be fixed for recording defence evidence in accordance with section 143 of the N.I. Act and till then no prosecution evidence had been examined before the court and only evidence by way of affidavit of a Assistant Regional Manager Commercial of the complainant Page No. 2 company and affidavit evidence of Regional Commercial Executive of the complainant company had been brought on record by the complainant. While posting case for defence evidence by impugned order dt. 27.9.2010, Ld. MM found such a procedure sanctioned by the ratio of Rajesh Aggarwal judgment given by High Court of Delhi reported as 2010(3) JCC
273. Accused has filed this revision whereby order impugned is alleged to be an illegality which will be causing a serious prejudice to the petitioner when petitioner did not have an occasion and opportunity to cross examination the complainant witnesses.
Notice of this revision was issued to the respondent M/s. Pepsico India Holdings (P) Ltd. but then though sent on its address 54, Lower Ground Floor, World Trade Centre, Barakhamba Road, New Delhi through process server as well by regd. post, notice by regd. post issued for 21.2.2011 has been returned " unclaimed" intimation given and notice through ordinarily process was returned that no such company was found available and existing on the given address.
Notice of this revision was again repeated to respondent through its counsel Sh. Anand Dabas for 22.3.2011. Advocate was shown served with the notice of the present revision but no one appeared on 22.3.2011. Matter was adjourned for today and no one has put in appearance. I find respondent is duly served but has not cared to present. I today heard advocate Shri Suresh Sharma for the petitioner revisionist.
Trial court record revealed that a complaint u/s. 138 N. I. Act was filed by petitioner Pepsico India Holdings (P) Ltd. Two cheques (1) for Rs.
Page No. 3 1,47,279/ bearing no. 885199 dt. 25.3.2009 and (2) cheque for Rs. 1,51,579/ bearing no. 885200 dt. 25.3.2009 alleged to have been issued by accused in favour of the complainant company in discharge of a liability towards price of goods supplied to the accused through invoices mentioned in the complaint, as per complaint allegation, bounced and payment of the cheques did not come forward from accused despite demand notice dt. 18.4.2009 was issued by the complainant company and served upon the accused - petitionerrevisionist.
Cognizance of offence was taken on 2.6.2009 and accused was summoned. Accused appeared before Ld. MM and finding a prima facie case made out, accused was put on trial with a notice of offence u/s. 251 CrPC given to him on 06.11.2009. Accused pleaded not guilt and claimed trial . Matter was then fixed for prosecution evidence. Two affidavit evidence of the complainant official were filed and then matter remained adjourned on a few dates for cross examination of those witnesses. Finally on 27.9.2010 Ld. MM found that in terms of High Court judgment in Rajesh Aggarwal case as per mandate of section 143 N.I.Act offence was to be tried summarily and accordingly Ld. MM posted case for defence evidence. Consequently complainant evidence remained on record only in the form of affidavit of two of its witness without there being any cross examination on them.
It has been held in Rajesh Aggarwal case that " long pendency of such cases of cheque bouncing offence is because of non observance of Page No. 4 mandatory provisions of the Act and the procedure for its trial provided in CrPC. It has been held in this judgment that when accused appears before court as summoned for this offence, court should ask him as to what was his plea of defence. In terms of section 263 (g) CrPC the court has to record plea of accused and his examination and trial of the case is not to be put in a process simply by recording the plea of accused that he pleaded not guilty. Accused must disclose to court as to what was his defence on the very first hearing when accused appears before the court. Plea as to why he should not be tried as summary trial for that offence is to be raised by accused before Ld. MM. Along with his plea he could file necessary documents and then could move an application u/s. 145(2) N. I. Act to recall complainant to cross examine him on his plea of defence. It is only after disclosing his plea of defence he could move an application that case should not be tried summarily but as a summon trial and such an application must disclose defence of accused and the reasons why he wants the case to be tried as a summon trial.
The judgment then lays down a proper procedure to be followed by Ld. MM in such case. It has been held : "I, therefore, consider that the proper procedure to 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 Page No. 5 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". In the present case no such procedure to try accused summarily was initiated. No plea of accused as to what was his defence and further any such plea that such defence required to proceed with the trial of the case as a summon trial was examined and considered.
Trial court record, however, reveals that demand notice proved as Ex. CW1/7 had been replied by petitioner revisionist accused and that reply is Ex. CW1/9. It is specific plea of accused in this reply that he had not received delivery of goods against invoices as mentioned in the demand notice towards discharge of which liability the cheque in question were said to have been drawn and issued. A plea was raised in reply that at the time of inception of business between the parties the complainant had received certain blank singed cheques and from time to time had been receiving blank signed cheques drawn in favour of complainant company Page No. 6 and the two cheqeus subject matter of case before Ld. MM were misused out of those blank signed cheques. Reply to the demand notice could be a defence which accused wanted to prosecute and thus he was entitled to cross examine the complainant witness. In fact case remained adjourned for a few dates for prosecution evidence. Cross examination of two witnesses whose evidence by way of affidavit had been filed on behalf of complainant company. Switching over to record defence evidence when accused had no opportunity to cross examine the complainant witness to prosecute his defence which had been raised in the reply to the statutory demand notice was improper exercised by jurisdiction of Ld. MM which could result in miscarriage of justice. Impugned order accordingly deserves to be set aside and petitionerrevisionist deserves an opportunity to cross examine the complainant witnesses. Of course any delay tactic in the speedy and effective trial of the case has to be curbed and meticulously controlled. Impugned order dt. 27.9.2010 is set aside and Ld. MM to proceed with the trial in accordance with law.
Trial court record along with copy of this order be placed before Ld. MM and then revision file be consigned to record room.
Announced in the Open (J.R.ARYAN) court on 20/04/2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
Page No. 7 Ajay Kumar Sharma Vs. Pepsico India Holding (P) Ltd. CR No. 16/2011 20/04/2011 Present: Revisionist in person with counsel Sh. Suresh Sharma.
And no one has appeared today for respondent i.e., Pepsico India Holdings (P) Ltd. Waited till 3 PM. Heard. Vide separate order revision is allowed and impugned order dt. 27.9.2010 is set aside.
TCR with copy of order be sent back to the trial court and petitioner to appear before Ld. trial court on 26.4.2011.
Revision file be consigned to record room.
(J.R. ARYAN) ASJ/NEW DELHI 20/04/2011 Page No. 8