Delhi District Court
Arvinder Singh Bhatia vs Ashok Kumar Khattar on 24 March, 2018
IN THE COURT OF RAKESH KUMAR SHARMA,
SPECIAL JUDGE (PC ACT) CBI02 CENTRAL,
TIS HAZARI COURTS, DELHI
CR No. 380/2017
ARVINDER SINGH BHATIA
S/o Sh. D.S. Bhatia,
R/o D101, Ground floor,
Ajay Enclave,
P.O. Subhash Nagar,
New Delhi. ....... Revisionist/ Petitioner
Versus
ASHOK KUMAR KHATTAR
S/o Sh. R.P. Khattar,
R/o B5, Inderpuri,
New Delhi110012. .......Respondent
Date of Institution : 23.08.2018
Date when reserved for Judgment : 23.03.2018
Date of Judgment : 24.03.2018
JUDGMENT
1. This is a revision petition filed by the accused against order dated 06.10.2016 (hereinafter 'the impugned order') passed by Ld. MM, Tis Hazari Courts, Delhi whereby he CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 1 has been summoned in a complaint u/s 138 of The Negotiable Instruments Act, 1881 (hereinafter 'the Act') filed by the complainant (respondent herein).
2. Ld. Counsel for the accused relied upon the following authorities in support of her contentions:
a) Judgment dated 19.04.2007 passed by Hon'ble Supreme court in Appeal (Civil 2060 of 2007 (arising out of S.L.P. ( C ) No. 12625 of 2005) Smt. J. Yashoda Vs. Smt. K. Shobha Rani, as reported in Indian Kanoon
b) 2004, LawSuit (SC) 1055, Subramanium Sethuraman Vs. State of Maharashtra
c) Judgment dated 25.08.2004 passed by Hon'ble Supreme Court in [Appeal (Crl.
No. 91/2002)] Adalat Prasad Vs. Roop Lal Jindal & Ors., as reported in Indian Kanoon.
d) 2000 (1) SCR 417, G. Sagar Suri and Anr. CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 2 Vs. State of UP and Ors.
e) AIR 1992 Supreme Court 2206, K.M.
Mathew Vs. State of Kerala and another
f) Judgment dated 05.08.75 passed by
Hon'ble Supreme Court with equivalent citation as 1975 AIR 1748, Ashok Dulichand Vs. Madhavlal Dube & Another, as reported in Indian Kanoon.
g) Judgment dated 04.03.1968 passed by Hon'ble Calcutta High Court with equivalent citation as AIR 1968 Cal 532, Parekh Brothers Vs. Kartick Chandra Saha and Ors., as reported in Indian Kanoon.
3. Ld. Counsel for the complainant while supporting the impugned Judgment relied upon the following authorities in support of his contentions:
a) 2015 STPL 6427 Delhi, Lekh Raj Sharma Vs. Yash Pal Gupta CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 3
b) Judgment dated 18.03.2009 passed by Hon'ble Supreme Court in Crl. Appeal No. 486-487 of 2009 (arising out of SLP (Crl. No. 2688-89 of 2005) Sethuraman Vs. Rajamanickam, as reported in Indian Kanoon.
c) 1997 STPL 3531 MP, Heeralal alias Nimma Vs. State of Madhya Pradesh.
4. I have heard Ld. Counsels for the parties and have also gone through the record, Trial Court Record (TCR) and authorities relied upon by counsels.
5. The first contention of Ld. Counsel for the accused was that vide order dated 28.07.2008, evidence of the complainant was closed by the order of the court. No application was filed by the complainant for reopening the complainant evidence. It is a settled law that a Criminal court cannot review its own order. However, the Ld. Trial Court recorded the evidence of the complainant on 06.10.2016 and passed the summoning order. Since recording of the evidence CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 4 of the complainant on 06.10.2016 itself was bad, no summoning order could / should have been passed. Section 145 of the Act is as follows:
"145. Evidence of affidavit (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."
(underlining by me) A perusal of the provision shows that the evidence of the complainant can be given on affidavit in a complaint u/s 138 of the Act. A perusal of the TCR shows that affidavit was filed by the complainant on 21.07.2006 (i.e., before 28.07.2008, the date when evidence of the complainant was closed by the Court). As per the provision, the affidavit is to be read as evidence in the matter. A perusal of the TCR also shows that after closure of the evidence by the Court vide CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 5 order dated 28.07.2008, no affidavit or document was filed by the complainant. The affidavit of the complainant and documents were filed and the evidence of CW2 and CW3 was recorded before 28.07.2008. What was done on 06.10.2016 was merely that the affidavit was tendered in the statement of the complainant. Except for tendering of the affidavit and documents in evidence, nothing else was stated in the entire statement of the complainant recorded on 06.10.2016. This statement was not at all required to be made by the complainant in view of the section 145 of Act noted above. Hence, in my considered view, no review is involved. Ld. Trial Court was bound to go through the affidavit along with the documents filed by the complainant and the evidence of other witnesses (CW2 & CW3) to decide whether there was sufficient ground for proceeding against the accused. Hence, the contention of Ld. Counsel for the petitioner in this regard is rejected.
6. It was next contended by ld. Counsel for the CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 6 petitioner that the complaint is based on two cheques allegedly issued by accused. However, the originals have not been filed by the accused before the Ld. Trial Court. Only the photocopy of the cheques was filed. No permission was sought by the complainant, must less given by Ld. Trial Court, for leading secondary evidence in respect of cheques. Even otherwise, conditions for leading secondary evidence was not satisfied by the complainant. Hence, the secondary evidence in respect of cheque should not have been led, much less considered by the Court and hence, the impugned order is bad. No law has been shown to me by Ld. Counsel for the accused laying down that no summoning order can be passed in the absence of original cheques in a complaint u/s 138 of the Act. In addition to the photocopies of the cheques filed by the complainant, one certificate issued by Punjab National Bank Dev Nagar branch, stating that two cheques, (particulars of which have been given in the certificate) drawn by M/s Libra Plus were deposited by the complainant in his account maintained with the bank, and the original reply to his legal CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 7 notice sent by the accused wherein the accused has admitted the issuance of both the cheques, were also filed by the complainant before Ld. Trial Court.
I am of the considered view that the standard of proof required at the stage of summoning of the accused is neither beyond reasonable doubt nor even prima facie and that mere suspicion that the accused has committed the offence is sufficient to summon the accused. I am of the considered view that even excluding the photocopies of both the cheques filed by the complainant, there was sufficient material before the Ld. Trial Court to pass the summoning order. The contention is, therefore rejected.
It may be noted here that not only in the reply given by the accused to the legal notice of the complainant filed by complainant before the Ld. Trial Court, even in the present petition, it is submitted by the accused as follows:
"c. That complainant/Respondent demanded two postdated cheques to be issued as a collateral security so that by showing the cheques he could impress upon the person concerned to issue loans.
CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 8 d. However, even after obtaining all the original property papers and cheques the complainant / respondent could not procure the loan for the accused / Revisionist and / or remit the amount to the accused / Revisionist' account.
e. The accused / Revisionist on not receiving the loan amount repeatedly requested the complainant /respondent to return the security cheques. However, the complainant / Respondent assured accused / revisionist that the cheques will not be misused and they have either been misplaced or mixed up with some other files. Similar responses were given regarding the other property papers.
f. That subsequently, the Complainant / Respondent deliberately / fraudulently presented the said cheques on 03.04.2000 which were received back dishonored."
(underlining by me) It is clear that execution of the cheques is not at all disputed by the accused.
7. It was also contended by Ld. Counsel for the accused that the complainant also filed a suit u/o XXXVII CPC against the defendant in which unconditional leave to defend was given to the accused herein and that the said suit was dismissed in default, which shows that the complaint is false. I CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 9 do not find any force in the contention. (As per the photocopies of the documents filed by the accused himself, the said suit was dismissed for nonprosecution.) The decision of the said suit is irrelevant for the complaint. As per law, the complainant can avail both the remedies. In case, he choses to give up one remedy, no fault can be found as the same is his right. The Ld. Trial Court was concerned only with the question whether there was sufficient material placed on record by the complainant to show that the accused has committed the offence u/s 138 of the Act. Hence, the contention is rejected.
8. I have carefully gone through the authorities relied upon by Ld. Counsel for the accused. There cannot be any dispute about the propositions of law laid down in the authorities but, it is a settled law that each case is to be decided according to its own facts. I am of the considered view that facts in the present case are materially different from those in the authorities. Smt J. Yashoda (supra), Ashok Dulichand (supra) and Parekh Brothers (supra) were relied CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 10 upon to contend that secondary evidence should not have been permitted in the present case. As noted above, even dis- regarding the photocopies of the cheque, in my considered view, there was sufficient material before Ld. Trial court to summon the accused. Subramanium Sethuraman (supra) and Adalat Prasad (supra) were relied by Ld. Counsel for the accused to contend that there is no provision for review in Cr.P.C. I have held above that no review is involved. G. Sagar Suri (supra) deals with Section 482 Cr.P.C which power this court does not have. I am unable to understand how K.M. Mathew (supra) helps the accused. This authority has been specifically over-ruled in Adalat Prasad (supra) by Ld. Counsel for the accused himself. Hence, with great respect, in my considered view, none of the authorities is applicable to the facts of the present case.
10. In view of the above discussion, I do not find any merits in the petition. The same is, therefore, dismissed.
11. A copy of this order with TCR be sent back to Ld. Trial Court.
CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 11
12. Both the parties shall appear before the Ld. Trial Court for further proceedings in accordance with the law on 31.03.2018.
13. The revision file be consigned to record room after due compliance as per rules. Digitally signed RAKESH by RAKESH KUMAR KUMAR SHARMA SHARMA Date: 2018.03.26 15:00:08 +0530 (RAKESH KUMAR SHARMA) SPECIAL JUDGE (PC ACT) (CBI):02 THC/ DELHI/ 24.03.2018 CR. No. 380/2017 Arvinder Singh Bhatia vs. Ashok Kumar Khattar 12