Delhi District Court
Cr No. 65/14 (Madhur Mittal vs . Zoom Communications Ltd.) on 19 November, 2014
CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.)
IN THE COURT OF DINESH KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE (SOUTH)
SAKET COURTS : NEW DELHI
CR No. 65/14
Unique Case ID No. : 02406R0291872014
Madhur Mittal
In the matter of Triveni Media Ltd.,
E323, Kamla Nagar, Agra (UP)
...... Petitioner
VERSUS
Zoom Communication Limited.
28, SaiulAjajb,
Mehrauli, Badarpur Road,
Opp. D Block, Saket,
New Delhi 110030
Through its AR (Mukesh Gupta)
...... Respondent
Revision petition u/S. 397 & 399 Cr.P.C.
against the order of Ld. MM dated 27.10.2014
Date of Institution : 05.11.2014
Arguments Heard on: 19.11.2014
Date of Decision: 19.11.2014
Page 1 of 10
CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.)
O R D E R
1.0 Vide this order I propose to dispose of the revision petition filed by the petitioner challenging the impugned order dtd. 27.10.2014 whereby the application on behalf of the accused / petitioner for de exhibition of documents Ex.CW1/2 and Ex.CW1/3 being the photocopy and having been marked in contravention to provisions of Sec. 65 of the Indian Evidence Act, 1872, dtd. 9/10/2014 was dismissed. Ld. MM also imposed a cost of Rs. 50,000/ (consolidated) to be deposited with DLSA (South). Aggrieved of this order, the petitioner has invoked the revisional jurisdiction of this Court on the ground that Ld. MM has not decided the objection raised by the petitioner regarding the fact that whether exhibited documents Ex.CW1/2 and Ex.CW1/3 would be read in evidence or not and therefore, the cross examination of the complainant's witness on the said document has been left at the risk of the petitioner. The petitioner has pleaded that Ld. MM had no power to impose the cost and this is in violation of the judgment of the Hon'ble High Court cited as Nova Vision Electronics Pvt. Ltd. and Anr Vs. State & Anr., 2011 CrLJ 868. The petitioner has submitted that in pursuance to the facility agreement executed on 12/9/07, the petitioner had given post dated cheques for a sum of Rs. 1,12,50,000/ towards the security to the respondent and the respondent in violation of the said facility agreement did not provide Page 2 of 10 CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) services and therefore, the matter was referred to the arbitrator. The petitioner has submitted that the facility agreement Ex.CW1/2 filed by the respondent/ complainant before the Court is not original and has some interpolation and respondent / complainant has also submitted the photocopy of the letter dtd. 27/8/08 to demonstrate that there were payments due by the petitioner to the respondent company. The plea of the petitioner is that the exhibition of the aforesaid documents were objected to being the photocopy and not original. However, the Court below did not take cognizance of the objections and deferred the decision over the same. Pursuant to this, the petitioner filed an application for de exhibition of Ex.CW1/2 and Ex.CW1/3 being a photocopy and having been marked in contravention of Sec. 65 of the Evidence Act, dtd. 9/10/2014. However, the. Ld. Trial Court rejected the application on the ground that almost 08 dates of hearing have lapsed from the date of tendering of said documents and therefore, the application is malafide and to procrastinate the trial. The petitioner has challenged the impugned order dtd. 27/10/2014 primarily on the ground that after the respondent has conceded that the original documents has been misplaced and in absence of any foundation for leading the secondary evidence, the documents were liable to be deexhibited or an order that these documents have not been relied upon ought to have been passed. Petitioner has relied upon H. Siddiqui (dead) by LRs Vs. A. Page 3 of 10 CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) Ramalingam, 2011(4) SCC 240, U.Sree Vs. U. Srinivas,2013(2) SCC 114, Delhi High Court Rules Volume III, Part E, Geeta Marine Services Pvt. Ltd. & Anr. Vs. State & Anr., 2009 CrLJ 910 . The petitioner has submitted that the impugned order is untenable in law and based upon conjectures and surmises. It has further been submitted that Ld. MM had no power to impose the cost and therefore, the impugned order is liable to be set aside in totality. Pursuant to the filing of the petition, the TCR was called.
2.0 Sh. Kamal Bahl, Ld. counsel for the petitioner has submitted that the order of the Ld. Trial Court suffers from inherent illegality and infirmity. Ld. MM has allowed secondary evidence without complying with Sec. 6365 of the Evidence Act. It has further been submitted that Ld. MM has also not followed Sec. 91 and Sec. 136 Indian Evidence Act. It has further been submitted by the Ld. counsel that even in Sudir Engineering Company Vs. Nitco Roadways Ltd., 1995 RLR 286 it has inter alia been held as under:
"Admission in evidence of a party's document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of Sections 6365 of the Evidence Act is adduced without laying foundation for its admissibility or where a document not properly stamped is admitted in evidence attracting applicability of Section 36 of Stamp Act."Page 4 of 10
CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) Ld. counsel for the petitioner has further relied upon Delhi High Court Rules Vol. III, Part E to bring home the point that the objections should have been decided by the Ld. MM at this stage. 2.1 Sh. Ahmed Khan, Ld. Addl. PP for State has submitted that there is no substance in the revision petition and it is liable to be dismissed.
3.0 I have considered the submissions and perused the record carefully.
4.0 At the first glance, the argument of the Ld. counsel for the petitioner seems to be attractive but if it is examined in totality, it is liable to be rejected outrightly. Perusal of the record indicates that this complaint was filed on 11/7/09 and summoning order was passed on 17/2/2010. The accused persons put in their appearance on 4/6/2010. Thereafter, the accused persons filed an application u/S 340 Cr.PC which was dismissed on 9/8/2010. Subsequently, an application was moved for return of the complaint on the ground of lack of territorial jurisdiction which was also dismissed vide detailed order dtd. 16/10/2010. Perusal of Page 5 of 10 CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) the record indicates that in the meanwhile, accused persons had not been appearing and taking exemptions on one ground or the other. The notice ultimately could be framed on 30/4/2011. In the meanwhile, an application for joint trial was also moved by the accused persons which was dismissed and the revision petition filed against this was also dismissed. The cross examination of CW1 started on 30/9/2011 which continued on 15/10/2011, 03/01/2012, 06/03/2012, 28/4/2012, 02/06/2012, 29/8/2012 and 6/11/2012. It is a matter of record that some of the adjournments were on behalf of administrative reasons and others were being sought on behalf of the defence. On 08/01/2013 an undated application was taken up for deciding objections regarding the evidence led by the complainant. This application was dismissed by the Ld. Trial Court on 18/2/2013 and the matter was again adjourned for further cross examination for 06/3/2013.
Against this, the petitioner filed a revision petition which was dismissed by the Ld. Sessions Court vide a detailed order dtd. 6/3/2014 and the cost imposed by the Ld. MM was also maintained. It is pertinent to mention here that the application which was dismissed on 18/2/2013 had a similar prayer which has now been made in the application dtd. 09/10/2014 and had been dismissed vide impugned order dtd. 27/10/2014. It is also a matter of record that order dtd. 6/3/2014 of Ld. Sessions Court has not been challenged by the petitioner.
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CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) 4.1 Perusal of the record would further indicate that on 06/3/2013 again an adjournment was sought by the Ld. counsel for the accused for cross examination of the complainant. Similarly, the case was adjourned on 22/3/2013 for the cross examination. On 17/4/2013, CW1 was further cross examined and cross examination was deferred for want of original agreement and when this continued, in the meanwhile, the file was called by the Ld. Addl. Sessions Judge in connection with the above said revision petition bearing No. 95/13 which was dismissed on 06/03/2014. It is a matter of record that on 30/10/2013, the complainant stated before the Court that he was not in possession of the original document as the same has been misplaced. Thus, when the revision petition No. 95/13 came up for consideration on 06/03/2014, the proceedings dtd. 30/10/2013 had already taken place wherein it had come that the complainant was not in possession of the original agreement but this plea was not taken before the Ld. Sessions Court. Perusal of the order dtd. 06/03/2014 indicate that none appeared for the petitioner to argue and Ld. Addl. Sessions Judge had dismissed the petition on merits. Even thereafter, on 09/10/2014 when the case came up for hearing, the defence did not cross examine the complainant and moved this application for de exhibition of Ex.CW1/2 and Ex.CW1/3. Perusal of all this, unerringly leads to only one conclusion that the petitioners are only interested in Page 7 of 10 CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) prolonging / delaying the trial. The petitioner is adopting all possible delaying tactics and infact abusing the process of the Court. The application with a similar relief had been dismissed by the Ld. MM on 18/2/2013 against which the revision petition No. 95/13 had also been dismissed. Even thereafter, the petitioner had the courage to file the application dtd. 09/10/2014 with the similar relief. Ld. MM had dealt with this application with all patience and passed a detailed and reasoned order.
I do not find any illegality or infirmity in the order of the Ld. Trial Court. Ld. Trial Court has passed a well reasoned order and there is no reason to interfere with the same. Rather, the petitioner / accused is guilty of abusing, misusing and interfering in the administration of justice.
4.1 Ld. counsel for the petitioner has relied upon the judgment of Nova Vision Electronics Pvt. Ltd. (Supra) to say that the Ld. MM had no power to impose the cost. In Nova Vision Electronics Pvt. Ltd. (Supra) the Hon'ble High Court has accepted the submission that there is no provision empowering the imposition of costs by the Magistrate. However, Ld. Addl. PP for State has relied upon judgment of the Hon'ble High Court in Directorate of Revenue Intelligence Vs. M/s Rajendra Page 8 of 10 CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) Brothers & Anr., Crl. MC No. 2452/2010 dtd. 19/1/2012 wherein it has specifically been held that with regard to the imposition of cost, there could not be any dispute that the ACMM enjoys such power u/S 309 Cr.PC. It has been submitted that both the judgments are of Hon'ble Single Judge and the Judgment cited by him is later in time.
Explanation (2) of Sec. 309 Cr.PC specifically provides that:
"The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."
Sec. 309 confers power upon the Court to postpone or adjourn the proceedings and this specifically vests a power in the Court of Magistrate for imposition of cost. In view of the judgment of the Directorate of Revenue Intelligence (supra) and explanation (2) of Sec. 309 Cr.PC, Ld. Addl. PP has submitted that Ld. MM has rightly imposed the cost. Even otherwise, in such like cases where the petitioner is misusing and abusing the process of the Court, the cost should be imposed for discouraging such frivolous practices. In view of the above discussions, the revision petition is dismissed. Petitioner is directed to deposit the cost within 15 days. It is also directed that already several adjournments have been taken for the purpose of cross examination of the complainant and, therefore, the cross examination of complainant be completed maximum in 03 consecutive dates as fixed Page 9 of 10 CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) by the Ld. MM.
5.0 A copy of this order alongwith the TCR be sent back to the Ld. Trial Court.
Revision file be consigned to RR.
Announced in the Open Court (Dinesh Kumar Sharma)
Today on 19.11.2014 ASJ(South) / Saket Courts/ ND
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CR No. 65/14 (Madhur Mittal Vs. Zoom Communications Ltd.) CR No.65/14 Madhur Mittal Vs. Zoom Communications Ltd.
19.11.2014 Present: Sh. Kamal Behal, Ld . Counsel for the petitioner.
Sh.Ahmed Khan, Ld. Addl. PP for State.
Arguments heard.
Vide separate order, the revision petition is dismissed. Petitioner is directed to deposit the cost within 15 days. It is also directed that already several adjournments have been taken for the purpose of cross examination of the complainant and, therefore, the cross examination of complainant be completed maximum in 03 consecutive dates as fixed by the Ld. MM.
A copy of this order alongwith the TCR be sent back to the Ld. Trial Court.
Revision file be consigned to RR.
(Dinesh Kumar Sharma) Addl. Sessions Judge (South) : 19.11.2014 Page 11 of 10