Delhi District Court
Ca No. 45/13 vs Anil Verma on 6 September, 2013
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) KARKARDOOMA COURTS, DELHI
CA No. 45/13
Manoj Seth
Sh. Late Sh. Jag Roshan Lal
R/o 923A1/8, Govind Puri,
Kalkaji, New Delhi110019.
.............Appellant
Versus
1. Anil Verma
S/o Sh. Ram Niwas Verma
R/o 16A, Gali Post Office
South Anarkali, Delhi51.
2. The State Govt. of NCT Delhi
............ Respondent
ORDER
1. By this order I shall dispose of the appeal filed by the appellant challenging the judgment of Ld. Trial Court passed on 12/02/13 convicting him of having committed an offence under section 138 of Negotiable Instruments Act (NI Act) and order sentencing him for the same vide order dated 16/02/13. Crl. (A) No. 45/13 Page 1 of 7 Manoj Seth Vs. Anil Verma
2. Briefly the facts are that respondent No. 1 had given a sum of Rs. 2,50,000/ to the accused on 01/09/04, because the appellant was facing financial need in his business. Appellant had agreed to pay Rs. 25,000/ per month and appellant had paid only one installment of Rs. 25,000/ in cash on 10/09/04. To prove his bonfide appellant had issued 9 cheques for total a sum of Rs. 2,25,000/.
3. Two of the cheques, however, were dishonored on presentment, on ground of " payment stopped by drawer" vide bank returning memo. The legal notice was given, however the money was not returned so the complaint was filed before the Trial Court. Ld. Trial Court convicted the appellant and sentenced him as per the judgment and order under challenge.
4. The appeal has been filed mainly on technical ground that complainant's evidence was not led and as such there was no evidence before the Court for having convicted the accused.
5. Ld. Counsel argued that the matter was fixed for CE on 02/09/08 and the complainant's evidence was not filed despite Crl. (A) No. 45/13 Page 2 of 7 Manoj Seth Vs. Anil Verma several opportunities granted. Final opportunity was granted for filing CE on 03/12/08 and the matter was suddenly fixed for cross examination of complainant's witness by the accused. There was as such no evidence of the complainant with the Trial Court.
6. Arguments heard. Record perused.
7. Ld. Counsel for the appellant has restricted his arguments on the technical grounds as aforesaid. Ld. Counsel for the respondent on the other hand argued that the appellant is not disputing the issuance of cheque. Signatures on the cheque are not disputed. The legal notice was served but was not replied. No application u/s 145 Cr.P.C. was filed.
8. The complaint in this case was filed on 03/06/05. Pre summoning evidence was filed on the basis of which summons were issued. Thereafter, the matter was put for complainant's evidence. The affidavit of complainant dated 20/07/05 is on record. On 08/07/11 the matter was fixed for cross examination of complainant's witness. On 08/08/11, again the witness was not cross examined. The same was the situation on 12/10/11 and the matter was fixed for Crl. (A) No. 45/13 Page 3 of 7 Manoj Seth Vs. Anil Verma SA. On 22/12/11 accused sought exemption. He did not appear on 08/02/12. On 10/04/12 statement u/s 313 Cr.P.C. was recorded. On 18/07/12 the matter was listed for DE. On 26/07/12, the counsel for the accused stated that he has moved an application seeking setting aside of the order dated 12/10/11, where by the opportunity given to accused to cross examine complainant's witness was closed. No such application however, is on record. The matter was listed for DE and was fixed for final arguments thereafter. Accused sought adjournment on 14/08/12. Both the parties sought adjournment on 25/08/12 and there was strike on 17/09/12. No one appeared before the Court on 21/09/12. On 31/10/12, review application was filed before the Court wherein for the first time the plea of no complainant's evidence having been filed, was raised. This application was dismissed by the Court for want of jurisdiction to review the matter. The order was not challenged by the appellant at that stage.
9. Ld. Trial Court passed the judgment after hearing the parties on merit. In its judgment Ld. Trial Court considered the plea of appellant regarding non tendering of evidence. It is observed in the order that the copy of affidavit filed at the stage of pre Crl. (A) No. 45/13 Page 4 of 7 Manoj Seth Vs. Anil Verma summoning evidence was on record and was also supplied to the accused. Referring to the provision of the law and the judgment of Hon'ble Delhi High Court in Rajesh Aggarwal VS. State & Amnr. Crl. MC No. 1996/10 decided on 28/07/10 whereby the procedure to be followed by the Magistrate in the case u/s 138 NI Act was laid down and the magistrate were directed to follow the procedure.
Section 145 was introduced in the Act by way of an amendment, the ambit of which falls within the realm of procedural law. The procedural laws as against the substantive laws are applicable retrospectively and are applied to the cases which are pending, in the courts, on the date of the amendment coming into force. This is the law and more specifically in respect of section 145, was laid down by the Supreme Court in Rajender Kumar Vs. Kalyan V (2002) SLT 790. The issue was discussed by the Trial Court also in its judgment. It is a known fact that after amendment of the Negotiable Instrument Act the Hon'ble High Court of Delhi passed its judgment in Rajesh Aggarwal's (supra) case.
10. In view of the law as discussed above and the legal pronouncements, Ld. Magistrate treated the case as a summary trial case. The copy of affidavit filed at the stage of pre summoning Crl. (A) No. 45/13 Page 5 of 7 Manoj Seth Vs. Anil Verma evidence was on record and was supplied to the accused. The order fixing the matter for cross examination directly therefore was not erroneous in any manner and after the conversion it was on the accused to have moved appropriate application for the examination of the witnesses of complainant in cross examination. On the contrary the accused did not cross examine the witness despite opportunities granted and did not even challenge the fixing of matter for cross examination of complainant's witness at any point of time during trial by availing appropriate remedy i.e. revision or appeal (review being not maintainable). He did not even challenge the order of dismissal of his review application. The raising of the issue at this stage, therefore, does not help the appellant in any manner.
11. Ld. Counsel for the accused has not argued the matter on merit except for raising aforesaid ground and saying that the legal notice was replied however, no reply of legal notice issued u/s 138 NI Act was on record. Infact the accused has denied in his statement, the receiving of the legal notice, which is the plea in the appeal also. The legal notice was issued at the address of the applicant by register post and therefore, there is presumption of service.
Crl. (A) No. 45/13 Page 6 of 7 Manoj Seth Vs. Anil Verma
12. The appellant did not raise any plausible defence in the appeal, the purpose of introducing section 145 in NI Act was to cut down wastage of time in trial by frivolous cross examinations and so it was laid that it will only be, where the accused would move an application to cross examine the complainant and would show a reasonable defence that the opportunity to cross shall be provided. The appellant has not pleaded any reasonable ground on which the opportunity to cross examine the complainant should be granted. He had led his evidence before the Court. He admitted that the cheques were his and were signed by him. Infact he admitted in his statement u/s 313 Cr.P.C. he had taken a loan of Rs. 2 lacs from the elder brother of complainant and had not returned the said amount. He thus, admits the liability of Rs. 2 lacs. The cheques are only of Rs. 50,000/. There is no defence with the appellant for which the file should be sent back to the trial Court merely to cure a technicality.
13. There is no merit in the appeal of the appellant. The same is dismissed. TCR be sent back along with copy of this order. Appellant is directed to surrender before the concerned Trial Court by 20/09/13. Appeal file be consigned to Record Room. Announced in the open court on 06/09/2013 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKDCOURTS/DELHI Crl. (A) No. 45/13 Page 7 of 7 Manoj Seth Vs. Anil Verma