Delhi District Court
Sharda Sehgal vs Yogesh Kumar Garg on 22 April, 2019
IN THE COURT OF MS. MANJUSHA WADHWA, ADDITIONAL
SESSIONS JUDGE-03, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
Crl. (R) No. 79/18
Sharda Sehgal
Proprietor of M/s. Rakesh Motors
C/o B-10/19, Rajouri Garden,
New Delhi - 110 027 Revisionist
Versus
Yogesh Kumar Garg
S/o Sh. R. A. Garg
R/o Flat No. 3, IInd Floor,
Plot No. 1, Gagan Vihar Extension,
Delhi -110 051 Respondent
Date of assignment : 02.04.2018 Date of Arguments : 03.04.2019 Date of Pronouncement : 22.04.2019 Order :
1. This is revision petition filed against the impugned order dated 05.02.2018 passed by Ld. Trial Court whereby application of the revisionist / accused under Section 91 Cr. PC has been dismissed.
2. The necessary facts for the disposal of present petition are that the petitioner had moved an application u/s 91 Cr. PC before the Ld. Trial Court seeking direction against the respondent / complainant to Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 1/8 produce the Income Tax Return, statement of account and passbook of the respondent / complainant from the year 1993 till 2014 and to disclose on oath source of his income and earnings from the years 1993 to 2014.
3. The back ground of the present case is that the respondent / complainant filed a complaint under Section 138 of Negotiable Instrument Act,1881 alleging that he had given a friendly loan of Rs. 5 Lacs in cash to the petitioner / accused on 10.11.2010. The petitioner / accused had executed a receipt dated 10.11.2010 alongwith promissory note and had also issued the postdated cheque of loan amount in favour of the complainant, which was dishonoured on presentation. The notice was framed against the petitioner / complainant under Section 251 Cr.PC on 31.08.2016 where he pleaded not guilty and claimed trial. He stated that he will disclose his defence under Section 145 (2) of NI Act. He has filed an application u/s 145 (2) of NI Act for seeking permission to cross examine the complainant on the ground that the complaint filed by the respondent / complainant is based on the cheque pilfered and stolen by the complainant more than about 10 years earlier. It is also stated that the complainant had never advanced any amount of Rs. 5 Lacs in cash on 10.11.2010 and there was no assurance given by the petitioner to return alleged amount to the respondent / complainant on or before 25.07.2013. It is also stated that the petitioner / accused did not execute any receipt dated 10.11.2010 in favour of the complainant nor did the accused execute any promissory note in favour of the respondent / complainant. It is also stated that the cheque in question was not issued by the petitioner / accused in discharge of any liability and there exists no legally Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 2/8 recoverable debt or dues from the petitioner / accused. It is also stated that the alleged cheque, receipt and promissory note have been filled in by the respondent / complainant himself and not by the petitioner / accused. It is also stated that the cheque in question pertains to the account which had been closed by the petitioner / accused about ten years ago and the said documents i.e. original cheque, receipt and promissory note be sent to CFSL for determination.
4. The ld. Trial Court has dismissed the application mainly on the ground that the petitioner / accused has not taken any defence that the respondent / complainant did not have capacity to pay alleged loan amount to the accused. It is further observed that the thrust of case of the accused is that the cheque on the basis of which the present case has been filed by the complainant was stolen. It is observation of Ld. Trial Court that the petitioner / accused has not taken defence that the complainant did not have financial capacity to pay the amount of Rs. 5 Lacs to the accused, and therefore the petitioner / accused cannot be allowed to ask any question in this regard in the cross examination of the respondent / complainant nor he would be allowed to take such defence in his evidence. The ld. Trial Court has placed reliance on the judgments of the Hon'ble High Court passed in Sam Pitroda v. Subramaniam Swamy, [321 (2016) DLT 431, Rajender Verma Vs. Ashok Malik (2012) RCR (Criminal) 743 and Dilip Kumar V. Sunita Mittal [2017 (239 DLT 34].
5. It is contention of Ld. Counsel for the petitioner / accused that the Ld. Trial Court has not correctly appreciated the ratio of judgment titled as Dilip Kumar Vs. Sunita Mittal (supra). He also urged that in Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 3/8 proceedings u/s 138 of NI Act, the existence of legally recoverable / enforceable debt is relevant consideration for adjudication by Ld. Trial Court. It is also his contention that he has taken a detailed defence in the application u/s 145 (2) of NI Act and documents sought for are necessary for proving the said defence. During the course of arguments, ld. Counsel for the petitioner fairly submitted that he is not pressing for relief under section 91 Cr.PC at this stage but the observations made by ld. Trial court whereby the right of the petitioner/accused to ask any question / document related to financial capacity of the complainant and his right to lead defence are taken away, be set aside.
6. On the other side, Ld. Counsel for the respondent / complainant submitted that the present revision petition is not maintainable as the order passed u/s 91 Cr. PC is interlocutory order and therefore jurisdiction of this court is barred u/s 397 (2) Cr. PC. He further contended that the order passed by Ld. Trial Court even on merit, is correct and passed after considering the ratio of judgments passed by the Hon'ble High Court of Delhi.
7. Heard and perused the record.
8. The Ld. Trial Court has dismissed the application u/s 91 Cr.PC mainly on the ground that the petitioner / accused has not taken a defence in the application u/s 145 (2) of NI Act that the complainant had no financial capacity to grant a loan of Rs. 5 Lacs in cash to the petitioner / accused.
Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 4/8
9. Before considering the order on merits, it is necessary to find out as to whether this court has jurisdiction to entertain the present revision petition. Ld. Counsel for the respondent / complainant has placed reliance on the judgment of Hon'ble Apex Court reported in JT 2009 (4) SC 164 titled Sethuraman Vs. Rajamanichkam in support of his contention that the order u/s 91 Cr.PC is interlocutory order.
10. On the other side, Ld. Counsel for the petitioner/respondent has placed reliance on the judgment of Hon'ble Apex Court reported as Amarnath Vs. State of Haryana, & Ors., 1977 AIR 2185. The Hon'ble Apex Court in Amarnath Vs. State of Haryana (supra) has observed that the term 'interlocutory order' in Section 397 (2) Cr.PC has been used in a restricted sense and not in any broad and artistic sense. It merely denotes order of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. It is also observed that any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this provision in Section 397 of the Code.
11. The Hon'ble Apex court in Sethuraman Vs. Rajamanickam (supra) observed that the order passed by Ld. Trial Court refusing to call the documents and rejecting the application u/s 311 Cr.PC were interlocutory orders and as such, the revision against those orders was clearly barred u/s 397 (2) Cr. PC. In this regard, it is apt to refer to the judgment of Hon'ble High Court of Delhi reported as Dilip Vs. Sunita Mittal (supra) which was also relied upon by Ld.Trial Court in the Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 5/8 impugned order wherein the Hon'ble High court of Delhi has considered the ratio of the judgment of Sethuraman Vs. Rajamanickam (supra) and observed that the directions given by Ld. MM vide order dated 24.05.2014 to the respondent / complainant to produce income tax returns is an intermediate order under Section 91 Cr.PC which is in the form of final order for the purpose of giving direction for production of Income Tax Returns and is revisionable order under Section 397 Cr. PC. This court is bound by aforesaid judgment of our Hon'ble High Court whereby the Hon'ble High Court has specifically observed that the order u/s 91 Cr. PC is not hit u/s 397(2) Cr.PC. In fact, the said judgment was relied upon by Ld. Counsel for respondent / complainant before the Ld. Trial Court.
12. Now coming to the second aspect of this case as to whether the Ld. Trial court has rightly dismissed the application u/s 91 Cr.PC, the ld. Trial Court has proceeded on the basis that the petitioner / accused has only taken a defence that the cheque on the basis of which present case has been filed by the complainant was stolen, is not in consonance with the grounds disclosed in the application u/s 145 (2) of NI Act. The reason for stating so is that besides taking a defence of theft of cheque in question, the petitioner / accused has taken a detailed defence in the application that he had never demanded any amount or given any assurance to return the alleged loan amount. The petitioner / accused also denied the execution of any receipt dated 10.11.2010, promissory note and issuance of cheque in question in discharge of any alleged liability.
Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 6/8
13. According to the petitioner / accused, the alleged cheque, receipt and promissory note were filled in by the complainant and not by him. In other words, the defence is not confined by petitioner / accused in the application u/s 145 (2) NI Act to stealing of cheque in question. The observation of the ld. Trial Court that the accused has not taken a clear defence to the extent that the complainant did not have capacity to pay alleged loan to the accused is unwarranted in view of detailed defence taken in the application under section 145 (2) NI Act. Once the petitioner/accused denied the advancement of any loan amount of Rs. 5 lacs by the complainant, the said defence would allow the petitioner / accused to know the source of alleged loan given by the complainant to the accused. It is settled law that the presumption under Section 139 of Negotiable Instruments Act is rebuttal presumption and therefore accused has every right to rebut the presumption against him. Reference in this regard is made to latest judgments of Hon'ble Apex Court passed in Crl. App No(s). 95-96/2019 titled as Anss Rajashekar Vs Augustus Jeba Ananth decided on 18.01.2019 and Crl App No. 636/2019 titled as Basalingappa Vs Mudibasappa decided on 09.04.2019.
14. It is for the accused to establish that the cheque was not issued for any legally recoverable debt and to prove that the accused is within his right to ask the complainant about the source of alleged loan advanced by him to the accused. By way of impugned order, Ld. Trial Court has foreclosed the right of the petitioner/accused to question the complainant during his cross examination about his financial capacity to advance loan and ask for its supportive document.
Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 7/8
15. In the considered opinion of this court, ld. Trial Court is not right in observing that the accused cannot be allowed to ask any question related to financial capacity of the complainant in the cross examination of complainant / or his witness nor, the accused would be allowed to take such defence. Such observation of Ld. Trial Court is uncalled for in the facts of the present case.
16. In view of the above, the observation made by the ld. Trial court in the impugned order to the extent that the accused cannot be allowed to ask any question in relation to financial capacity of the complainant to advance loan in cross examination of the complainant and/or his witnesses nor the accused would be allowed to take such defence in his evidence is not sustainable and is hereby set aside. It is also clarified that in view of detailed defence taken by the accused in the application u/s 145 (2) of NI Act, the accused has right to ask for documents from the complainant / or his witnesses during cross examination to prove the defence taken by him in the application u/s 145 (2) of NI Act. The petition is disposed of in aforesaid terms.
17. Copy of this order alongwith TCR be sent to the Ld. Trial Court.
Digitally signed byFile be consigned to record room. MANJUSHA
WADHWA
MANJUSHA Location: Shahdara
District,
WADHWA Karkardooma
Courts, Delhi
Date: 2019.04.22
16:56:57 +0530
Announced in open court (Manjusha Wadhwa)
today on 22.04.2019 Additional Sessions Judge-03
Shahdara District,
Karkardooma Courts, Delhi.
Crl. (R) No. 79/18 Sharda Sehgal Vs. Yogesh Kumar Garg 8/8