Delhi District Court
Parveen Kumar vs Sameer Chandan on 9 August, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Criminal Revision no147/2017
CNR No. DLST010031492017
Parveen Kumar ..........Revisionist
s/o Sh. Bhagwan Dass
r/o H.No. 438, Asola,
New Delhi 110074
Versus
Sameer Chandan ..........Respondent
s/o late Sh. Ram Chander r/o 33A, DDA Flats, Ber Sarai, New Delhi110016 Date of Institution : 01st May, 2017 Arguments concluded on : 04th August, 2017 Judgment announced on : 09th August, 2017 O R D E R
1. This order shall dispose of revision petition u/sec 397 Cr.P.C. to recall for the records to examine the legality, validity, correctness and propriety of the impugned order dated 20.09.2016 passed by the Ld. MM in CC No.462147/2016 u/sec 138 NI Act titled as Sameer Chandan vs. Parveen Kumar whereby the Ld. MM was pleased to close the opportunity of the petitioner to move application u/sec 145 (2) NI Act and order dated Praveen Kumar Vs. Sameer Chandan Page No. 1 of 14 CR No. 147/2017 13.02.2017 whereby the Ld. MM has been pleased to dismiss the application u/sec 145 (2) NI Act for crossexamination of the complainant and the other witnesses.
2. The facts as emerged from this revision petitions are that the respondent/complainant herein filed a complaint u/sec 138 of NI Act, against the petitioner alleging that the petitioner and the respondent are known to each other since last few months only, the petitioner gained confidence of the respondent and in furtherance thereof on 15.11.2015 availed a friendly loan of Rs.4,75,000/ from the respondent. It is also alleged that while availing the said loan, the petitioner in his own handwriting executed a letter dated 15.11.2015 duly signed by the petitioner detailing the terms, conditions, issuance of post dated cheques, interest rate etc qua the said loan. In the said letter, the petitioner himself wrote/admitted that the said loan was for a period of four months only at the rate of 2% pm interest and it is also stipulates that in lieu of repayment of the principal amount, the petitioner issued two post dated cheques, one bearing no.000025 for a sum of Rs.2,75,000/ dated 15.03.2016 drawn on Bank of India, Chattarpur, New Delhi and another cheque no.080300 dated 15.03.2016 for Rs.2,00,000/ drawn on Punjab National Bank, Chandanhola, Mehrauli, New Delhi which were allegedly dishonoured on presentation to the banker for the reason Praveen Kumar Vs. Sameer Chandan Page No. 2 of 14 CR No. 147/2017 "Funds insufficient" vide memo dated 12.04.2016. It is also alleged that a legal notice dated 21.04.2016 was sent by the respondent.
3. Further, pursuant to the receipt of summons/notice in the present case, the petitioner appeared in person before the Ld. Trial Court and notice u/sec 251 Cr. P.C. was framed, statement of the petitioner was recorded wherein the petitioner pleaded not guilty and claimed trial.
4. Further, it is submitted that on 20.09.2016, the matter was listed for filing of application u/sec 145 (2) Cr. P.C. by the petitioner and on the said date, the brother of the respondent namely Parmit Mishra appeared before the Ld. Trial Court and moved an application for exemption from the personal appearance and the same was allowed with the direction to appear in person on the next date of hearing. However, the application u/sec 145 (2) NI Act could not be filed as at that time, no advocate was engaged by the petitioner on account of poverty and on the said date, the Ld. MM has been pleased to close the opportunity of the petitioner to file application u/sec 145 (2) NI Act vide order dated 20.09.2016.
5. Further, it is submitted that thereafter the petitioner engaged a counsel, then he came to know that that matter is fixed for defence evidence. Further, the petitioner filed an application u/sec 145 (2) NI Act for cross examination of the complainant/respondent and other witnesses and Praveen Kumar Vs. Sameer Chandan Page No. 3 of 14 CR No. 147/2017 application u/sec 315 Cr. P.C. to examine himself as defence witness.
6. Further on 13.02.2017, both the said applications are came up for hearing before the Ld. Trial Court and on the said date, Ld. MM allowed the application u/sec 315 Cr.P.C., however, the Ld. MM dismissed the application u/sec 145 (2) NI Act of the petitioner.
7. It is further argued that the said order by which the petitioner has been deprived from the justice is totally illegal, unfounded, baseless and uncalled for which the petitioner has been constrained to prefer the present revision inter alia on the grounds since the impugned order is against the law, the facts of the case and is liable to be set aside and said order is devoid of merits. The Trial Court ignored the fact that the petitioner pleaded not guilty, therefore, an opportunity to crossexamine the respondent and his witnesses should have been given to the petitioner. As per section 145 (2) NI Act, the crossexamination of the witnesses of the respondent/complainant is mandatory, if accused/petitioner wishes to contest the case. The Trial Court has ignored the defence and decided the application of the petitioner u/sec 145 (2) NI Act on technical grounds without assigning any cogent and bonafide reason. Petitioner on account of poverty, unable to afford the legal representative though the petitioner has good prima facie case and unable to rebut the case of the complainant and there is every likelihood of his acquittal Praveen Kumar Vs. Sameer Chandan Page No. 4 of 14 CR No. 147/2017 in the said case. Petitioner has no friendly relations with the complainant. Further, Sh. Sunder Singh Tanwar is a common friend of the petitioner and complainant and one Shiv Kumar Sharma had taken loan from the complainant. Further, petitioner had given cheques to Sh. Sunder Singh Tanwar as security/guarantee for Shiv Kumar Sharma and said Shiv Kumar Sharma in collusion with the complainant has misused the cheque in question. Petitioner had never taken any friendly loan from the complainant neither issued any cheque to the complainant towards legally enforceable liability but petitioner has never executed a letter dated 15.11.2015 in favour of the respondent herein. Ld. MM has passed the impugned order dated 15.11.2015 in great haste and ignored the facts on record, the law on the subject and the petitioner's contentions and the Trial Court ignored the same as such the impugned order is liable to be set aside.
8. Apart from the revision petition, the petitioner also filed an application for condonation of delay u/sec 5 of Limitation Act to condone the delay of 130 days in filing the revision petition with the submissions that as the petitioner being layman and is a poor person and did not engage any counsel for defend him in the present case. The petitioner engaged a counsel only on 09.01.2017 and thereafter, on 13.01.2017 he moved two application u/sec 145 (2) NI Act and u/sec 315 Cr P.C. After the assignment of the Praveen Kumar Vs. Sameer Chandan Page No. 5 of 14 CR No. 147/2017 revision petition, notice of the petition and application were issued to the respondent and respondent appeared only once and thereafter, respondent was not appeared.
9. I have heard the arguments and gone through the material available on record and Trial court Record.
10. First of all while application for condonation of delay moved by the applicant. There is no reason for delay on each and every dates is explained for condonation is required to be made. The applicant only submitted that he is a layman and poor person and did not engage a counsel, this is not a valid ground, all are equal before the law. Hence, submissions made herein is not plausible and not a valid and justified one .
11. The counsel for the petitioner has relied upon the catena of judgments passed by the Hon'ble Supreme Court titled as M/s. Mandvi Co operative Bank Ltd. vs. Nimesh B. Thakore, Crl. Appeal No. of 2010 (Arising Out of SLP (Crl.) No.3915/2006 where Hon'ble Supreme Court has observed in para 22 that , "the court may, at its discretion, call a person giving his evidence on affidavit examine him as to the facts contained therein. But if an application is made either prosecution or by Praveen Kumar Vs. Sameer Chandan Page No. 6 of 14 CR No. 147/2017 the accused the court must call the person giving on affidavit to be examined as to the facts contained therein. What would be the extent and examination in each case is a different matter and that has to be reasonably construed in provision of section 145 (1) and having regard to the object and purpose of the entire sections 143 to 146. The scheme of sections 143 to 146 does not in any way affect the judgment under section 165 of the Evidence Act. As a matter of fact, section 145 (2) expressly provide court may, if it thinks fit, summon and examine any person giving evidence on affidavit would the person giving evidence on affidavit be examined, on being summoned to application the court on the application made by the prosecution or the accused? The affidavit of the summoned that is already on the record is obviously in the nature of examinationinchief on being summoned on the application made by the accused the deponent of the affidavit complainant or nay of his witnesses) can only be subjected to crossexamination as stated in the affidavit. In so far as the prosecution is concerned the occasion to summon witnesses who has given his evidence on affidavit may arise in two ways.
Praveen Kumar Vs. Sameer Chandan Page No. 7 of 14 CR No. 147/2017 The prosecution of a person who has given his evidence on affidavit and has been crossexamined by defence. The prosecution may also have to summon a witness whose evidence is given to be examined and objection is raised by the defence regarding the validity and/or sufficiency of material document (s) submitted alongwith the affidavit. In that event the witness may summon to appear before the court to cure the defect and to have the document (s) properly examined and following the correct legal mode. This appears to us as the simple answer to the factual matrix and the correct legal position. Any other meaning given to subsection (2) of section 145 of NI Act by Mr. Ranjit Kumar would make the provision of section 145 (1) regulatory and also defeat the very scheme of trial as designed under section 143 to 147."
12. Another judgment titled as Indian Bank of Association & ors. vs. Union of India & Anr. passed in Writ Petition (Civil) No.18 of 2013 observed in para no.13, 16 and 21 as below:
13. This Court while examining the scope of Section 145 in Radhey Shyam Garg vs. Naresh Kumar Gupta (2009) 13 SCC Praveen Kumar Vs. Sameer Chandan Page No. 8 of 14 CR No. 147/2017 201, held as follows: If an affidavit in terms of the provisions of Section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be crossexamined and upon completion of his evidence, he may be reexamined. Thus, the words examine any person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is summoned by the court in terms of subsection (2) of Section 145 of the Act, in our opinion, would mean for the purpose for the purpose of crossexamination. The provision seeks to attend a salutary purpose.
16. We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant Praveen Kumar Vs. Sameer Chandan Page No. 9 of 14 CR No. 147/2017 alongwith complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre summoning stage and the post summoning stage. In other words, there is no necessity to recall and reexamine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145 (2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263 (g) Cr. P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263 (h) Cr. P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and Praveen Kumar Vs. Sameer Chandan Page No. 10 of 14 CR No. 147/2017 defences.
21. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given: Directions:
(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by email address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed.
If the summons is received back unserved, immediate follow Praveen Kumar Vs. Sameer Chandan Page No. 11 of 14 CR No. 147/2017 up action be taken.
3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.
4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr. P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145 (2) for recalling a witness for crossexamination.
5) The Court concerned must ensure that examinationin chief, crossexamination and reexamination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for crossexamination as and when there is direction to this effect by the Court.
13. Keeping in view the submissions and judgments cited above, the complaint was filed on 18.05.2016 and the present petitioner/accused Praveen Kumar Vs. Sameer Chandan Page No. 12 of 14 CR No. 147/2017 appeared on 23.07.2016. Thereafter, continue to be appeared on 04.08.2016, accused seeks time to move the application u/sec 145 (2) but he did not file application though on 20.09.2016, the opportunity to move the application u/sec 145 (2) was closed and thereafter, matter was fixed for recording of statement of accused u/sec 313 Cr. P.C. On 09.01.2017, statement of accused was recorded and matter was listed for defence evidence and list of witnesses alongwith details of witnesses to be summoned which was to be filed within 10 days. Thereafter, matter was adjourned on 13.02.2017, then application under section 145 (2) of NI Act filed on behalf of accused, which was dismissed as being nonmaintainable though application u/sec 315 Cr. P.C. was moved on behalf of accused to lead defence evidence, which was allowed. In the present revision petition, accused has challenged the order dated 20.09.2016 as well as order dated 13.02.2017 since the application u/sec 145 (2) of NI Act was filed without supporting any application for condonation of delay. The application was not maintainable as same was disposed of on 20.09.2016. Application u/sec 315 Cr. PC to lead defence evidence was allowed, whereby accused is given an opportunity to examine himself u/sec 315 Cr.PC. whereas he has taken the stand can be proved through himself or by defence evidence.
14. In view of the aforesaid discussion and judgments cited, the petitioner has an opportunity u/s 145 (2) NI Act since long back but failed to Praveen Kumar Vs. Sameer Chandan Page No. 13 of 14 CR No. 147/2017 cross examine the complainant. Even the order under challenged is barred by law of limitation, the application filed for condonation of delay is with the reasons which is not plausible, each and every date of delay has not been explained as per the mandate. Therefore, the said application is also devoid of any merit. The application u/s 315 Cr PC is already been allowed by the trial Court by given an opportunity to the petitioner to adduce his evidence and prove through the defence lead by him as well as to rebut the contentions of the complainant/respondent herein.
15. Keeping in view of the aforesaid discussion, found no merit in the present revision petition and same is hereby dismissed. The parties left to bear their own cost.
16. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this order for perusal.
16. Revision file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Satinder Kumar Gautam)
open Court on Special Judge (NDPS)
09th August, 2017) South District: Saket/09.08.2017
Praveen Kumar Vs. Sameer Chandan Page No. 14 of 14
CR No. 147/2017