Delhi District Court
Naveen Kumar Malhotra vs State (Govt. Of Nct Of Delhi) on 1 March, 2017
Criminal Revision No.60/2016 & Criminal Revision No.94/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revisions No. : 60/2016 & 94/2016
Under Section : 138 Negotiable Instruments Act, 1881
Police Station : Shakarpur
CC No. : 51310/2016
CNRs No. : DLET01-002809-2015 &
DLET01-004527-2015
In the matter of 60/2016 :-
NAVEEN KUMAR MALHOTRA
S/o. Sh. R.L. Malhotra,
R/o. 6, Aspern Green, Nirwana City,
Gurgaon.
............REVISIONIST
VERSUS
1. STATE (GOVT. OF NCT OF DELHI).
2. Sh. GULSHAN SETHI
S/o. Late Sh. G.C. Sethi,
R/o. G-116, Preet Vihar, Delhi-110092.
............RESPONDENTS
Date of Institution : 02.11.2015
Date of Receiving : 03.11.2015
Date of reserving judgment : 25.02.2017
Date of pronouncement : 01.03.2017
Decision : Petition is dismissed.
AND
In the matter of 94/2016 :-
NAVEEN KUMAR MALHOTRA
S/o. Sh. R.L. Malhotra,
R/o. 6, Aspern Green, Nirwana City,
Gurgaon.
............REVISIONIST
VERSUS
1. STATE (GOVT. OF NCT OF DELHI).
Page 1 of 12 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
Criminal Revision No.60/2016 & Criminal Revision No.94/2016
2. Sh. GULSHAN SETHI
S/o. Late Sh. G.C. Sethi,
R/o. G-116, Preet Vihar, Delhi-110092.
............RESPONDENTS
Date of Institution : 11.12.2015
Date of Receiving : 14.12.2015
Date of reserving judgment : 25.02.2017
Date of pronouncement : 01.03.2017
Decision : Petition is partly allowed.
ORDER
1. Vide this order, I shall decide two criminal revision petitions filed by revisionist against orders dated 24.09.2015 and 05.11.2015, passed by the trial court in a case titled as Gulshan Sethi v. Naveen Malhotra bearing CC No. 51310/16, under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to a an Act). BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to both revision petitions are that respondent no.2 herein i.e. complainant Sh. Gulshan Sethi alleged that revisionist had taken three loans of Rs.1 crore each on 01.02.2011, 02.02.2011 and 05.02.2011 for his business needs and financial requirements. He issued three cheques for Rs.1 crore each towards repayment of the said loans. However, in view of new guidelines issued by RBI the old cheques were returned to the revisionist and thereafter, he issued fresh three cheques for Rs.1 crore apart from executing promissory notes for repayment of aforesaid loan. All the cheques were dishonored on account of payment stopped by the drawer. Respondent no.2 sent legal notice thereby demanding the cheque amount, but in vain. Hence, the complaint was filed.
3. Revisionist was summoned as an accused and a notice under Page 2 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 Section 251 Cr.P.C was given to him. Revisionist pleaded not guilty and he took plea that he had issued the cheques to the complainant and had also received a legal notice from the complainant. However, he was not liable to pay the amount of these cheques as these cheques were issued to complainant under extreme threat and without liability. He further took plea that prior to these cheques complainant was having blank signed cheques of the revisionist. Those cheques were returned to the revisionist by the complainant and cheques in question were taken under threat. He further took plea that complainant had taken around 25 cheques from the revisionist, which were subject matter of 8 cases filed by complainant and one case filed by Ms. Anuradha Sethi. He further took plea that complainant blackmailed him and therefore, he issued these cheques to him.
4. Revisionist moved an application under Section 145 (2) NI Act seeking cross-examination of the complainant's witnesses and same was allowed by ld. MM. Revisionist conducted cross-examination of CW-1/complainant on 25.02.2015, 27.03.2015, 19.08.2015 and 24.09.2015. On 24.09.2015 ld. MM observed that cross-examination of the complainant ran into more than 10 pages and on certain stages questions from defence counsel were disallowed for different reasons. Even cost was imposed for asking irrelevant questions. Ld. MM referred to the judgment passed by Supreme Court in the case of D.P. Sinha v. Brig. E.T. Sen in Criminal Revision Petition No. 427/1969 decided on 14.10.1969, wherein Supreme Court recognized power of trial court to fix time limit for cross-examination of witnesses. Ld. MM further referred to judgment passed by High Court of Delhi in Ravinder C.P. Navelker v. Aruna Infracon Pvt. Ltd. in Criminal MC No.4299/14 decided on 21.08.2015. In this Page 3 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 judgment, High Court of Delhi recognized the power of trial court to curtail the right of cross-examination. Keeping in view the record of this case and aforesaid case laws, ld. MM directed the revisionist to complete cross-examination of the complainant on 05.11.2015 in two hours from 02:00 PM to 04:00 PM. Ld. MM further observed that failing to conclude the cross-examination, right to further cross- examine the complainant would stand closed. On 05.11.2015 complainant was further cross-examined by revisionist, however, it was not concluded by him. Revisionist moved an application seeking permission to continue further cross-examination, which was disallowed by ld. MM on the grounds that she had no power to review her own order dated 24.09.2015. Ld. MM closed cross-examination of complainant/CW-1 in view of directions given on 24.09.2015. GROUNDS : -
5. Being aggrieved of the impugned orders dated 24.09.2015 and 05.11.2015, revisionist approached this court in criminal revisions on the following grounds :-
● That the trial court did not appreciate that the questions which were disallowed were part of the defence on which the revisionist was relying upon and the details of that property transaction were clearly stated in the reply to the legal demand notice as given by the revisionist and filed by the respondent no.2 along with the criminal complaint.
● That the trial court did not appreciate that the revisionist had consistently taken the same defence since beginning from replying to the legal demand notice, framing of notice, moving an application under Section 145 (2) NI Act and during the cross- examination of the respondent no.2.
● That the trial court did not appreciate that the witness (respondent Page 4 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 no.2 herein) in his cross-examination dated 24.09.2015 has himself admitted that he was well aware and deeply involved in the purchase of the property.
● That the trial court did not appreciate that according to his own admission dated 25.02.2015 witness (respondent no.2 herein) stated that he had an experience of about 29 years in the relevant field and the witness could be called an expert in his own field. ● That the trial court did not appreciate that in a case under Section 138 NI Act the statutory presumption under Section 139 NI Act is in favour of the complainant (respondent no.2 herein) and against the accused (revisionist herein) and considering the peculiar nature of the facts and the circumstances of the case in hand, it is essential that the revisionist/accused should be given fullest opportunity to prove his case by cross-examining the complainant in great detail as this is the only opportunity available to the revisionist/accused under law to challenge the veracity of the case of the complainant (respondent no.2 herein).
● That the trial court did not appreciate that considering the peculiar facts and circumstances of the case, the Predecessor MM was pleased to direct that the case may be tried as a summons trial case and not like summary trial which is the statutory provision. ● That the trial court gravely erred in limiting the cross-examination of the respondent no.2 to a pre-fixed time limit of two hours and pre judge the issue thereby causing great prejudice to the revisionist.
● That the trial court did not appreciate that the respondent no.2 was yet to be cross-examined regarding voluminous financial statements/ documents containing intricate and complex figures consisting of ITR for the assessment year 2011-12, 2012-13, Page 5 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 2013-14 and 2014-15 of respondent no.2; ITR in the name of one Gulshan Kumar (HUF) for the assessment year 2011-12, 2012-13 and 2014-15; bank account statement from the period 01.04.2010 to 31.03.2011, 01.02.2011 to 31.03.2011, 30.04.2012 to 07.11.2012 and ledger account statements in respect of the revisionist from 01.04.2010 to 31.03.2013, all of which were produced by the respondent no.2 in the trial court on 27.03.2015 during his cross-examination and exhibited as Ex.CW-1/20 to Ex.CW-1/23.
● That the trial court did not appreciate that as per allegations of the respondent no.2/complainant, the alleged loan of Rs.3 crores was given by the respondent no.2/complainant in cash to the revisionist/accused in a short span of 4 days.
● That the trial court did not appreciate that the purpose of cross- examination is to elicit truth and test the veracity of the witness and the time frame for the same cannot be pre fixed as the same shall depend upon the answers and a particular vague answer to a question may lead to another 10 questions to get to the bottom of unvarnished truth.
ARGUMENTS :-
6. Ld. counsels for the revisionist made their submissions on the lines of grounds taken in the petition. They submitted that revisionist had given the cheques in question to complainant under coercion and he had also lodged FIR against the complainant. They further submitted that revisionist has the right to cross-examine the complainant so as to bring in his defence on the record. My attention was also taken by ld. defence counsels to the questions which were disallowed by ld.
MM on 24.09.2015. Those questions are as follows :-
Q1. Is it correct that between 2005 and 2011, the rates of property Page 6 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 in Delhi soared astronomically? (question disallowed being a general question requiring expert opinion.) Q2. Do you remember how much profit you were earning from running hotel at the above said property? (E-8, East of Kailash) (question disallowed being irrelevant to the transaction in question.) Q3. Did you check the balance sheet or any other original paper of the running hotel at the above said property? (question disallowed being irrelevant to the transaction in question.) Q4. Was any agreement to sell also executed between you and the accused for the above said property in respect of sale deed Mark CW-1/D-5? (question disallowed being irrelevant and the sale deed already been admitted by the complainant.) Q5. Can you tell the reasons why the accused sold the above said property to you? (question disallowed subject to cost of Rs.200/- being irrelevant.) Q6. Did you make any complaint to the Registrar or any other authority that the accused is not giving original document of the above said property despite registration of sale deed Mark CW-1/ D-5? (question disallowed being irrelevant subject to cost of Rs. 200/-.) Q7. I put it to you that no such complaint was made to the Registrar or any other authority because you knew that the original papers of the said property were kept with the bank against a loan on the said property? (suggestion disallowed being irrelevant subject to cost of Rs.200/-) Q.8.I put it to you that record of loan against properties is available on MCA website for any person to check the same. Did you verify the same for the above said property or took any other steps to Page 7 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 verify there were no encumbrance attached with above said property? (question disallowed being irrelevant subject to cost of Rs.200/-)
7. Finally, ld. MM directed ld. defence counsel to ask relevant questions pertaining to defence disclosed on the record and further observed that failing the same right of cross-examination shall be curtailed.
8. Ld. counsel for revisionist further referred to averments made in application under Section 145 (2) NI Act, which related to sale transaction of some property between both the parties. They submitted that the property of revisionist was purchased by complainant for a meager amount of Rs.2.6 crore and even this amount was not paid to revisionist in totality. They submitted that all these transactions took place because of coercion exercise by complainant upon the revisionist.
9. Per contra, ld. counsel for complainant supported the impugned orders submitting that revisionist had been merely delaying the proceedings and had been putting irrelevant questions. APPRECIATION OF ARGUMENTS, FINDINGS & DECISION :-
10.I have gone through the record of the case. The right to cross-
examine a witness is certainly an important right of an accused. However, one must not read this right to be unfettered right to put any kind of question during cross-examination of the witness. Though, the proceedings in a complaint case under Section 138 NI Act are supposed to be conducted in summary manner. However, it can be tried as summons case and the record of this case shows that the trial was being conducted as applicable to summons case. Revisionist was given opportunity to cross-examine the complainant. The facts on the part of complainant are very short to say that he had given loan of Rs.3 crore to the revisionist and the cheques in Page 8 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 question were given for repayment of that loan taken in February 2011. Revisionist took plea at the stage of framing of notice under Section 251 Cr.P.C that cheques were given under extreme threat and without liability. He did not explain the description of such threats at that stage. In his application under Section 145 (2) NI Act, revisionist took plea that complainant was known to him since February 2007 and complainant had forced revisionist to sale his property situated at E-8, East of Kailash, New Delhi, in the year 2010 for an amount of Rs.2.60 crore. Revisionist was being blackmailed by the complainant that he would be defamed in the eyes of his family on the basis of some objectionable photographs and videos. Complainant had taken crores of rupees from revisionist under threat and complainant also asked him to part with the last source of income of the revisionist i.e. a hotel namely 'Star Rock' situated at C- 5/30, Safdarjang SDA, New Delhi and this property was purchased by revisionist for Rs.55 crore. On 01.02.2013 revisionist was forced by brother of complainant to sign on the agreement to sell this property for consideration of Rs.30 crore. Though, it was having mark value of Rs.75 crore. At the same time, he was also forced to issue receipt of Rs.1.8 crore and Rs.70 lac. The cheques in question were also got signed by complainant and his brother forcibly. Name, amount and date on the cheques were later on filled up by complainant.
11.On perusal of plea taken in this application and the plea taken during the stage of 251 Cr.P.C, I find that revisionist himself had been changing stand in respect of same fact. He had stated before ld. MM that he had given all the cheques in filled condition except date on the same. Though, in the application he took a U turn about filling name and amount in the cheque.
Page 9 of 12 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016
12.In any case, this is not the stage of making final evaluation of the plea taken by revisionist in his defence. The issue is that can revisionist keep on cross-examining the complainant on any topic in the name of establishing his defence? Answer has to be in negative. The transactions between revisionist and the complainant, which admittedly took place in the year 2010, does not have any bearing on the plea taken by the revisionist about handing over the cheques in question to the complainant in the year 2013. Therefore, I find that ld. MM had rightly disallowed series of questions put by ld. defence counsel on 24.09.2015.
13.I do not wish to make an exhaustive comment over the questions put by ld. defence counsel during cross-examination of complainant, as it may have some impact on the trial of this case. However, it is suffice to say that revisionist cannot be allowed to go stretching the limits of facts or circumstances which are required to be put to the complainant in his cross-examination. It is a matter of record that complainant was examined exhaustively and his cross-examination runs into around 13.5 pages. If in the name of cross-examining the witness, revisionist had been wasting the time by putting irrelevant questions or suggestions, then no one else can be blamed for the same and hence, ld. MM was right in her approach to raise an alarm to the revisionist to desist from putting irrelevant questions and to conclude cross-examination.
14.I do feel that probably in the name of cross-examining the complainant, revisionist had been trying to delay the proceedings. On perusal of records of this case, I find that revisionist had not been diligent since beginning to cross-examine complainant. He sought adjournment and kept changing his counsels and bringing new counsel on the date fixed for CE on "20.07.2014, 07.10.2014 and Page 10 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 19.11.2014." Revisionist also tried to mislead trial court about stay over the proceedings granted by Delhi High Court, on 06.01.2015. The trial court has to regulate the proceedings so as to curb the tendency to delay the proceedings as well as to curb the tendency of putting irrelevant question in the cross-examination. Ld. MM in this case had done so, which cannot be faulted with. It is unfortunate that the revisionist and his counsels had been so adamant that despite alarm being raised by ld. MM on 24.09.2015 to stop putting irrelevant questions and to conclude cross-examination on 05.11.2015, they did not conclude the cross-examination. Such approach of revisionist cannot be appreciated at all.
15.Revision cannot lie against all orders including order to disallow any question during evidence. In Central Bank of India v. Gokul Chand, AIR 1967 SC 799, Supreme Court ruled that "orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of the document on the relevancy of a question, all these interlocutory orders are steps taken towards the final adjudications and for assisting the parties in the prosecution of their cases in the pending proceedings. They regulate the procedure only and do not affect any right or liability of the parties." Therefore, as far as allowing the revisionist to put the questions, which were disallowed by ld. MM, is concerned, I do not find any merit in such plea. I also do not find merit in another plea of revisionist that he has unfettered right to keep cross-examining the complainant. Hence, first revision petition has to be dismissed.
16.However, at the same time I deem it fit to give one last opportunity to the revisionist to have proper legal advise and to conclude the cross-
Page 11 of 12 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.60/2016 & Criminal Revision No.94/2016 examination of complainant on a date to be fixed by ld. MM. Revisionist shall have maximum time period of one hour only to conclude this cross-examination and therefore, it shall be necessary for him to go through the records and previous statement of the complainant, so as to avoid putting same questions in the cross- examination. He must come prepared with his relevant questions or suggestions, so as to conclude this cross-examination within one hour.
17.This additional opportunity for the revisionist is being granted purely on the grounds of affording him one last opportunity to take suitable steps to defend himself in this case, as per the allegations made against him and the defence set by him.
18.Revisionist shall make payment of cost, which were already imposed upon him by ld. MM on 24.09.2015 to the complainant. He shall pay further cost of Rs.5,000/- in Victim Compensation Funds, DLSA (East) and Rs.1,000/- to complainant, for availing the above mentioned last opportunity to conclude this cross-examination. The payment of these costs must be made before the date fixed for cross-examination of complainant by ld. MM and it shall be pre condition to avail this opportunity. Second revision petition is disposed of accordingly, being partly allowed.
19.Both parties shall appear before ld. MM (East) on 04.03.2017.
20.TCR along with copy of common order be sent back to the trial court. A copy of order be also sent to the officer concerned.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 01.03.2017 Special Judge (PC Act) CBI, East (This order contains 12 pages) Karkardooma Courts, Delhi Page 12 of 12 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi