Delhi District Court
M/S Paramount Surgimed Ltd vs Vikram Musale on 24 November, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 202 of 2018
CNR No. DLSE01-002211-2018
IN THE MATTER OF:
M/s Paramount Surgimed Ltd.,
Office at : Plot No.1, L.S.C.
Okhla Industrial Area, Phase-II,
New Delhi-110020
Through its Authorized Representative
Ms. Meenu Mahajan
.......Revisionist
Versus
Vikram Musale,
The Proprietor of :
M/s Veekram Agencies,
D/6, Charkop Amba Mata Co-op PHSG
Society Limited, Plot No.809, No.8,
Charkop, Kandivili (West),
Mumbai - 67 (Maharashtra)
....... Respondent
Instituted on : 17.03.2018
Reserved on : Not reserved
Pronounced on : 24.11.2021
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.11.24
12:34:12 +0530
JUDGMENT
1. By way of the instant revision, revisionist takes exception to the order dated 02.02.2018 whereby its application under section 142(b) Negotiable Instruments Act (hereinafter referred to as 'NI Act') read with section 473 Cr.PC seeking condonation of delay in filing complaint under section 138 Negotiable Instruments Act, stood dismissed by Ld. Metropolitan Magistrate-03, South East District, Saket Court, New Delhi, in case bearing CC No.8330/2017 titled as M/s Paramount Surgimed Ltd Vs Vikram Musale.
2. Brief facts may be taken note of: A complaint alleging commission of offence under section 138 NI Act was filed by revisionist/complainant with the allegation that respondent had issued a cheque dated 29.08.2011 for an amount of Rs.13 lacs in discharge of his legal liability. On presentation, the cheque got dishonoured vide cheque return memo dated 01.09.2011 for reasons 'insufficient funds'. Respondent did not make payment despite service of notice dated 20.09.2011 and thereafter the complaint was filed under provisions of NI Act.
3. Record transpires that the aforesaid complaint was filed by revisionist before court concerned with delay of approximately nine days and notice of application seeking condonation of delay was ordered to be issued against the respondent herein. In the meantime, in view of direction of Apex Court in case Dashrath Rupsingh Rathod Vs Crl Rev. No. 202 of 2018 M/s Paramount Surgimed Ltd Vs Vikram Musale Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.24 12:34:20 +0530 State of Maharashtra & Anr, Crl Appeal No.2287/2009 dated 01.08.2014, aforesaid complaint was ordered to be returned to complainant for filing the same before court of competent jurisdiction.
4. Record further transpires that the complaint of the revisionist was restored in view of amendment in NI Act known as The Negotiable Instruments (Amendment) Act, 2015 notified vide Gazette dated 15.06.2015 and court concerned had again issued court notice to revisionist with regard to application seeking condonation of delay.
5. Thereafter, after hearing arguments on the aforesaid application and considering the material available on record, Ld Trial Court passed the impugned order thereby dismissing the aforesaid application and consequently, complaint of revisionist was also dismissed. Relevant observations of Ld Trial Court is given below for the sake of convenience :-
"8. While the complainant has pleaded in the application that the main counsel as well as associate counsel had met with a major accident, neither the main counsel nor the associate counsel have anywhere been named in the application. Further, the nature of the accident and nature of injuries thereby sustained by the counsel have not been specified in the application.
9. Admittedly, no document has been filed on record to show that any counsel, let alone Sh. Saumitra Singhal, whose affidavit has been filed alongwith the application, had met with any accident in the night of 21.10.2011, or on any other date, or sustained any injuries. Further, no document has been filed on record to show that the counsel for the complainant had been advised complete rest by the doctor, as pleaded in the application. Not only did the complainant not file any such supporting document alongwith the application under consideration, which was filed alongwith the complaint in the year 2011, it has failed to file the same even though sufficient time and opportunities were granted to it vide orders dated Crl Rev. No. 202 of 2018 M/s Paramount Surgimed Ltd Vs Vikram Musale Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.24 12:34:27 +0530 29.11.2017 and 18.12.2017 to file such documents, if any.
10. The applicant/complainant has relied upon the document dated 02.11.2011 stated to be a letter issued by medical insurance company and sought to contended that claim documents i.e. medical documents in respect of the accident in question, medical treatment and expenses incurred had been submitted by Sh. Saumitra Singhal, Advocate, to his medical insurance company. However, perusal of the said document reveals that firstly the same is a mere copy/printout, not even signed or stamped by any person and secondly the same does not show that the claimed made by the insured i.e. Sh. Saumitra Singhal, was in respect of medical expenditure incurred on account of any accident, let alone accident dated 21.10.2011. Further, while as per the contents of paragraph 4 of the application under consideration, the complainant's counsel could regain health only in the second week of November, the aforesaid document purported to have been issued by a medical insurance company namely Apollo Munich is dated 02.11.2011, which goes to shows that the medical insurance claim had been made by the above named counsel of the complainant even before 02.11.2011. The same belies the plea of the applicant/complainant that its counsel could regain health only in the second week of November as it is hard to believe that the counsel/injured would have made an insurance claim even before he had recovered from the alleged injuries sustained in the alleged major accident and that to within about 10 days of the alleged accident.
11. Moreover, perusal of the affidavit of Sh. Saumitra Singhal, Advocate, dated 15.11.2011, which has been relied upon heavily by the applicant/complainant in support of the application under consideration, reveals that the same is a verbatim copy of the affidavit of the Authorised Representative of the complainant, except the fact stated in paragraph 1 thereof that the deponent is the counsel for the complainant. The said affidavit is simply in the nature of a supporting affidavit filed along with the the application under consideration. The deponent therein, ie the counsel of the complainant, has not therein affirmed that he had met with an accident or that he had sustained several injuries or that he had been advised complete rest by the doctor, as alleged in paragraph 3 of the application under consideration. The said affidavit of Sh. Saumitra Singhal, Advocate, is, therefore, in the opinion of this Court, of no aid to the applicant/complainant.
12. Even if the aforesaid documents dated 02.11.2011 was to be considered, firstly, it does not state that any original medical/treatment documents had been submitted by Sh. Saumitra Singhal to the insurance company and secondly, even if original documents had in fact been submitted by the insured to the Crl Rev. No. 202 of 2018 M/s Paramount Surgimed Ltd Vs Vikram Musale Page No. 4 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.24 12:34:34 +0530 insurance company, no reason has been shown as to why copies thereof could not have been produced in support of the application under consideration.
13. The applicant/complainant has not stated in the application as to on which date it had sent the relevant papers to its counsel for preparation of the case as stated in paragraph 3 of the application. Further, it has failed to state as to when and how it had come to know about the alleged major accident with which its counsel had met and whereby they had sustained injuries. Further, it has failed to state the date on which it had asked its counsel regarding filing of the present complaint and found that the same had not been drafted, as averred in para 4 of the application. The averments in the above regard are devoid of the material particulars and bald in nature.
14. As discussed above, the applicant/complainant has failed to bring any material in support of the ground/cause pleaded in the application under consideration. The ground pleaded is bald and lacking in material particulars. The applicant/complainant has failed to show any cause, let alone 'sufficient cause', for its failure to file the complaint within the prescribed period.
15. There is no doubt as to the principle laid down in the decision in M/s Brushman India Ltd. & Anr. v. Standard Chartered Bank (supra), relied upon on behalf of the applicant/complainant, that it is the sufficiency of the explanation rather than length of delay which is the decisive factor in deciding an application for condonation of delay. However, the said decision does not come to the aid of the applicant/complainant in the present case inasmuch as the applicant/complainant has failed to show sufficient cause for its failure to file the complaint within the prescribed period.
16. The decision in Vinay Anand v. State & Ors. (supra), relied upon on behalf of the applicant/complainant, is not applicable in the present case inasmuch as it is not negligence of the counsel which has been pleaded by the complainant/applicant but the indisposition of the counsel on account of an accident, which the applicant/complainant has failed as aforesaid to even prima facie establish.
17. In view of the aforesaid, no ground is made out for condonation of delay in filing of the present complaint under Section 138 N.I. Act by the complainant. The application of the complainant for condonation of delay filed along with the complaint is hereby dismissed.
18. Consequently, the complaint under Section 138 read with Section 142 Negotiable Instruments Act stands dismissed. "
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6. The revisionist is aggrieved with the said order of the Ld. Trial Court and has assailed the same on various grounds which can be summarized as under:- :-
(i) That Ld Trial Court failed to appreciate the fact that revisionist rendered sufficient explanation and cause for not filing the complaint within statutory period ;
(ii) That Ld Trial Court failed to appreciate the fact that revisionist was not on fault rather his counsel committed negligence in filing the compliant within stipulated period;
(iii) That Ld Trial Court erred in holding that the affidavit of Advocate Sh Saumitra Singhal is of no aid to the revisionist assigning the reason he had not affirmed in affidavit that he met with an accident:
(iv) That Ld Trial Court failed to appreciate the settled position of law that while dealing with application seeking condonation of delay, a pragmatic approach has to be adopted by the court;
7. Ld. counsel for the revisionist has argued on the line of grounds as taken in the instant petition. He argues that Ld Trial Court has erred in dismissing the application of revisionist seeking condonation of delay in filing complaint under section 138 NI Act. It is vehemently argued that matter is based on issuance of cheque by respondent for huge amount of Rs.13 lacs in discharge of his legal liability and complaint of revisionist should not have been dismissed by Crl Rev. No. 202 of 2018 M/s Paramount Surgimed Ltd Vs Vikram Musale Page No. 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.24 12:34:53 +0530 Ld Trial Court for such technicalities i.e. delay in filing of complaint. It is urged that the delay in filing the complaint was neither intentional nor deliberate and the same was bonafide. On the strength of these arguments, revisionist seeks setting aside of the impugned order.
8. None appeared on behalf of respondent to address arguments.
9. I have heard contentions of Ld counsel for revisionist and perused the record.
10. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
11. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is Crl Rev. No. 202 of 2018 M/s Paramount Surgimed Ltd Vs Vikram Musale Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.24 12:35:02 +0530 palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
12. Therefore, in view of the settled position of law, this court in its revisional jurisdiction, is not expected to substitute its own view with that of Ld. Trial Court until and unless the order passed by Ld. Trial Court suffers from jurisdictional error or patent infirmity/illegality. In the instant case, as evident from record, Ld. Magistrate while dealing with contentions of revisionist, passed a well reasoned detailed order, thereby dismissing the application seeking condonation of delay in filing complaint under section 138 NI Act and therefore, this court cannot and rather ought not substitute its own view with that of Ld. Magistrate (while exercising its revisional jurisdiction) and thereby arriving at a different conclusion.
13. Even otherwise, it is evident from record that revisionist Crl Rev. No. 202 of 2018 M/s Paramount Surgimed Ltd Vs Vikram Musale Page No. 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.24 12:35:11 +0530 did not come out with any plausible reasons for condonation of delay in filing the complaint. It is observed that revisionist had attributed the entire delay on his previous counsel, however, there is nothing on record to suggest that if he has made any complaint against his previous counsel to the Bar Council or any other Authority for his fault or misconduct. It appears that revisionist is trying desperately to wriggle out from his indolence by conveniently shifting the entire blame on his previous counsel.
14. 'Law aids the vigilant and not the indolent'. It is a settled law that on expiry of period of limitation, a valuable right accrues in favour of other side and same cannot be defeated in a routine manner and existence of sufficient cause is a condition precedent for exercise of discretion by the court for condoning the delay. If the delay is not properly, satisfactorily and convincingly explained, court cannot condone delay merely on asking of aggrieved parties.
15. In the instant case, as mentioned above, the revisionist had failed to show existence of any sufficient cause for condonation of delay. Therefore, as rightly observed by Ld Trial Court no good ground was made out for condoning the delay.
16. Therefore, in my considered opinion, the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary Crl Rev. No. 202 of 2018 M/s Paramount Surgimed Ltd Vs Vikram Musale Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.11.24 12:35:22 +0530 powers vested in the Ld Magistrate. Ld counsel for revisionist has failed to point out any patent illegality or jurisdictional error in the impugned order.
17. In view thereof, I do not find any malafide or arbitrary exercise of discretion by Ld Magistrate. Accordingly, this court finds no valid reasons to interfere in the order dated 02.02.2018. The revision petition is accordingly dismissed.
18. TCR be sent back along with copy of this judgment to Ld Trial Court.
19. Revision file be consigned to Record Room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.11.24
12:35:31 +0530
Announced in the open (ANUJ AGRAWAL)
Court on 24th November, 2021 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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