Delhi District Court
M/S. United Electronics vs M/S. Beetel Teletech Limited on 13 December, 2019
IN THE COURT OF SH. RAKESH SYAL, ASJ-03, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Criminal Revision No.429/2019
In re:
1. M/s. United Electronics
2. Harpreet Singh (Proprietor)
Both at Shop no.1,
E-10, Guru Nanak Pura, Jail Road,
New Delhi-110058.
....Petitioners
Versus
M/s. Beetel Teletech Limited
First Floor, Plot No.16,
Udyog Vihar, Phase-IV,
Gurgaon, Pin Code - 122015.
....Respondent
Date of filing of Revision : 24.07.2019
Date of arguments : 13.12.2019
Date of order : 13.12.2019
ORDER
1.1 This order shall decide the Revision Petition filed by Petitioner No.1 M/s. United Electronics and Petitioner no.2 Shri CR No.429/2019 13.12.2019 Page 1 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. Harpreet Singh, Proprietor of M/s. United Electronics, challenging the order dated 30.05.2019 of the Ld. Trial Court, vide which his application 145 (2) of the Negotiable Instrument Act, 1881 (hereinafter referred to as NI Act) has been dismissed.
2.1 The relevant facts leading to filing of the Revision Petition are that the respondent (complainant before the Ld. Trial Court) has filed a complaint u/s 138 NI Act against Petitioner No.1 M/s. United Electronics and Petitioner no.2 Shri Harpreet Singh, [accused no.1 (described as partnership firm) and accused no.2 (described as partner of accused no.1) respectively before the Ld. Trial Court]. It is alleged that the respondent company is a manufacturer and distributor, inter- alia, of IT peripherals in India. The petitioner/accused had purchased USB Flash Drives from the respondent/complainant regarding which invoices were raised by the respondent/complainant. The total value of goods delivered was Rs.46,89,895.39. It is further alleged that in discharge of his legal liability, the petitioner/accused issued cheque no.300903 dated 31.12.2016 for Rs.46,89,895/- drawn on Syndicate Bank, Rajindra Place, East Patel Nagar, New Delhi. On presentation at respondent's bank i.e. Kotak Mahindra Bank Ltd., the said cheque was returned dishonoured for the reason 'Account Closed', vide return memo dated 05.01.2017. The respondent/complainant sent a legal notice dated 25.01.2017, on CR No.429/2019 13.12.2019 Page 2 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. 27.01.2017, which was received by the petitioner/accused on 28.01.2017. However, the petitioner/accused neither replied to the same nor made payment within 15 days. Consequently, the complaint was filed by the respondent/complainant. After pre- summoning evidence was led, the accused was summoned. On 05.02.2019, notice u/s 251 Cr.P.C. was framed against the petitioner/accused. On the same day, he moved application u/s 145 (2) NI Act. On 30.05.2019, reply to the said application was filed. After hearing arguments, Ld. MM dismissed the said application as under:-
"I have considered the submissions made along with the statement of defence as enumerated by the accused in the notice u/s 251 Cr.P.C. In my opinion, there is no reason to allow the said application. Accordingly, the same is dismissed"
3.1 The order dated 30.05.2019 has been assailed, inter- alia, on the ground that it is important for the petitioner/accused to bring on record the fact with respect to non-maintainability of the complaint, for which he seeks opportunity to cross-examine the respondent/complainant and his witnesses. The cheque in question was never issued by the petitioner/accused in discharge of any legal liability. The said cheque was misused by the respondent/complainant as the petitioner/accused had some business transactions with the CR No.429/2019 13.12.2019 Page 3 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. respondent/complainant but the alleged bills/invoices were forged and no items as per the same were delivered to him. He had given blank security cheque for business transaction. Further, no legal notice was ever served to the petitioner accused. He has valid defence to prove himself innocent, which need to be put to the respondent/complainant during cross- examination. It is further stated that no prejudice would be caused to the respondent/complainant if the petition is allowed.
4.1 In the reply filed on behalf of the respondent/complainant, the averments made in the revision petition have been denied. It is submitted that Shri Harpreet Singh has filed the petition for himself and for accused no.1 being its proprietor although M/s. United Electronics is a partnership firm and Shri Harpreet Singh is the partner of the same. The complainant or his witnesses need not be recalled as the contentions of the petitioner/accused are with regard to documentary evidence. The stage for recalling the witnesses has been passed since the statements of witnesses have already been recorded. The cheque was issued by the petitioner/accused towards outstanding liability upon supply for goods. The legal notice was duly received by him. It is also submitted that if the revision is allowed it would cause great prejudice and irreparable damage to the respondent/complainant.
CR No.429/2019 13.12.2019 Page 4 of 12M/s United Electronics & Other v. M/s Beetel Teletech Ltd. 5.1 Shri Sharad Arya, Ld. Counsel for the petitioners has argued that in the application u/s 145 (2) NI Act, the petitioner has disputed the invoices raised by the respondent/complainant and his legal liability. He has submitted that in fact the petitioner/accused has given blank cheques as security. He has also not received notice. He has contended that he needs to put his defence to the respondent/complainant during cross- examination, which is his valuable right. He has also relied upon Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, AIR 2010 SC 1402, MVL Industries Ltd. & Ors. v. IFCI Factors Ltd., 2015 (4) JCC (NI) 289 and Venu Madhava K & Ors. v. The State (NCT of Delhi) & Ors. MANU/DE/4654/2017.
6.1 Shri K.P. Singh, Ld. Counsel for the respondent has argued that the entire case is based on documentary evidence and, thus, there is no requirement of cross-examination of the respondent/complainant. He has further submitted that the issues being raised by the petitioner/accused in his application u/s 145(2) NI Act and in the present petition were not raised by him in response to the notice u/s 251 Cr.P.C.
7.1 I have heard Shri Sharad Arya, Ld. Counsel for petitioner and Shri K.P. Singh, Ld. Counsel for the respondent and also perused the record.
CR No.429/2019 13.12.2019 Page 5 of 12M/s United Electronics & Other v. M/s Beetel Teletech Ltd. 8.1 It is pertinent to refer to section 145 (2) of the NI Act, which stipulates as under:-
"The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."
(emphasis supplied) 8.2 From the use of word 'shall' as above in sub-section (2) of section 145 NI Act, it is clear that if the accused moves an application, it is mandatory for the court to summon and examine the person giving evidence on affidavit. Cross examination is part of examination of a witness and is essential to test the veracity of a witness.
8.3 In Venu Madhava K & Ors. v. The State (NCT of Delhi) & Ors., 2017 SCC OnLine Del 12064, the Hon'ble High Court of Delhi held, "35. The examination of a witness means as laid down in Section 137 of The Indian Evidence Act, 1872, his examination-in-chief, his cross-examination and his re-examination.
36. It follows that the provision that a witness shall be examined CR No.429/2019 13.12.2019 Page 6 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. means not only that he shall be examined-in-chief but also that he should be permitted to be cross-examined and re-examined.
37. Further, examination-in-chief of a witness alone without his cross-examination is incomplete statement of witness and is not evidence under the Indian Evidence Act.
38. Whole of evidence, i.e. examination-in-chief and cross- examination, is to be read together for correct appreciation to find out truth there from cross-examination being a part of evidence, while judging veracity of statement of a witness.
39. The judgment of the Apex Court in case Radhey Shyam Garg v. Naresh Kumar Gupta; 2009 (3) JCC (NI) 204 is relevant, which is reproduced as under:-
"13. Examination in terms of the provisions of the Indian Evidence Act envisages examination in chief, cross-examination and re-examination, as would appear from Sections 137 and 138 thereof. A person whose evidence has been taken by way of an examination in chief by way of affidavit, keeping in view the statutory scheme noticed both in the Code of Civil Procedure as also in the Code of Criminal Procedure, there cannot be any doubt whatsoever that a person intends to summon a witness who had filed his affidavit would be only for the purpose of his CR No.429/2019 13.12.2019 Page 7 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. cross-examination."
40. The very purpose of Section 137 of Evidence Act and Section 311 Cr.P.C. would be defeated if the opportunity to cross-examine a witness is not given to the either of the party.
41. In the present case the dismissal of the application moved by the petitioner No. 1 under Section 145(2) NI Act as well as under
Section 311 Cr.P.C. otherwise means obstruction in bringing out the evidence on record.
42. The Court is duty bound to allow the cross-examination of the witness whose examination-in-chief has already been recorded. Without allowing cross-examination of the statement of such witness the same cannot be read in evidence in the instant summary procedure case.
43. The judgment relied by the learned counsel for the respondent in case Rajesh Agarwal v. State is not applicable in the facts and circumstances of the present case."
8.4 In MVL Industries Ltd. & Ors. v. IFCI Factors Ltd., 2015 (4) JCC (NI) 289, it was held, "11. It is always the endeavour of the Court to do justice and not CR No.429/2019 13.12.2019 Page 8 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. decide the case in a hurried manner. In the present case, only witness is the complainant, who has not been allowed to be cross-examined. Therefore, it will certainly prejudice the rights of the petitioners."
8.5 In Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, the Hon'ble Supreme Court held, "30. Nevertheless, the submissions made on behalf of the parties must be taken note of and properly dealt with. Mr Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No. 4760 of 2006 pointed out that sub- section (2) of Section 145 uses both the words, "may" (with reference to the court) and "shall" (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination- in-chief and be required to verbally state what is already said in the affidavit." (emphasis supplied) CR No.429/2019 13.12.2019 Page 9 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. 8.6 In Kamlesh Singh v State of UP, 2016 SCC OnLine All 3214, it was held, "2. Witness in a particular case plays a great role and importance as they are eyes and ears of the justice and on the basis of their evidence the Court reaches to a correct conclusion in a particular case to give a decision in a case. Further as per the provisions of the Act which are stated hereinabove, it is the first right of prosecution to produce his witnesses in order to establish and prove his case, thereafter the accused got a right to cross-examine the said witness in order to establish that he is innocent in the matter. Thus, a right to cross-examination of an accused. is a valuable right rather is a great role in order to defend him in the matter in issue."
8.7 In this case, in response to notice, u/s 251 Cr.P.C., the petitioner/accused has stated that he has given blank cheques to the complainant, there was no legal liability, the account pertaining to the cheque was partnership account, which was closed by the bank, the cheque was given as security and that he has not received any legal notice. In his application u/s 145 (2) Cr.P.C., the petitioner/respondent has stated that the cheque in question was not issued by him in discharge of any legal enforceable liability, the bills/invoices were forged, he had CR No.429/2019 13.12.2019 Page 10 of 12 M/s United Electronics & Other v. M/s Beetel Teletech Ltd. given some blank cheques for security for business transaction or that legal notice was not received by him. In reply filed by the respondent/complainant, it is, inter-alia, stated that complainant can only be recalled for cross-examination examination on the plea of defence taken on the notice u/s 251 Cr.P.C. The petitioner/accused has made averments in the application in addition to the statement in plea of defence, which cannot be considered for recall of respondent/ complainant for cross-examination. The accused has also not denied transaction between him and the complainant.
9.1 From the aforesaid, it is clear that the petitioner accused has disputed certain facts. His request that he needs to cross-examine the respondent/complainant to put those facts to him and also to test his veracity cannot be denied. Cross- examination is a valuable right of the opposite party and the petitioner can not be deprived of the said right. Ld. Trial Court has not given any reason while passing the impugned order. It is, thus, considered that the impugned order is illegal and cannot be sustained. Accordingly, the revision petition is allowed and the impugned order dated 30.05.2019, vide which application under section 145(2) NI Act of the petitioner was dismissed, is set aside. Ld. Trial Court is directed to give opportunity to the petitioner/accused to cross-examine the complainant/respondent in accordance with law.
CR No.429/2019 13.12.2019 Page 11 of 12M/s United Electronics & Other v. M/s Beetel Teletech Ltd. 10.1 A copy of the order, along with the trial court record, be sent to the Ld. Trial Court.
11.1. Revision file be consigned to record room.
ANNOUNCED IN THE OPEN COURT (Rakesh Syal)
Today i.e. 13.12.2019 ASJ-03/NDD/PHC/New Delhi
13.12.2019
CR No.429/2019 13.12.2019 Page 12 of 12
M/s United Electronics & Other v. M/s Beetel Teletech Ltd.