Delhi District Court
Sh Vikram Dev Malhotra vs Rajesh Lamba on 21 May, 2015
1
IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI
Crl. R. NO. 02/15
Sh Vikram Dev Malhotra
S/o late Sh Darshan Ram Malhotra
R/o F4/3, Second Floor, Prudential Palm
Chogum, Opp. Angel Resorts
Parvorium, Goa.
........REVISIONIST
versus
Rajesh Lamba
s/o Sh B. M. Lamba
r/o 561/562, Double Story
New Rajinder Nagar
New Delhi.
.......RESPONDENT
DATE OF INSTITUTION :04.02.2015
DATE OF JUDGMENT :21.05.2015
J U D G M E N T
1. By this order I shall dispose off the present revision petition filed u/s 399 Cr.P.C by the revisionist against the impugned order dated 26/11/2014 passed by Ms Aakanksha Vyas Ld Page 1 of 10 pages 2 Metropolitan Magistrate Delhi whereby the application for transfer of the case in terms of the directions of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs State of Maharashtra and Anr was dismissed.
2. Brief facts leading to the present revision petition are that a dispute between the parties, arose out of certain financial transaction wherein it has been alleged that the petitioner issued two cheques to the respondent which were dishonoured and the complaint case was filed. It is further stated that petitioner is permanent resident of Goa and cheque in question pertaining to Kotak Mahindra Bank were issued by its Panjim Branch, Goa. It is stated that petitioner had to face great hardship as he had to travel from Goa to Delhi , for contesting the case and thus could not properly follow up the matter. In the judgment in case Dashrath Rupsingh Rathod vs State of Maharashtra and another it was observed by Hon'ble Supreme Court that in cases u/s 138 N I Act only those cases where the recording of evidence u/s 145 (2) has commenced the matter would continue at the ongoing place and in other matters, it should be transferred to the place of cheque issuing branch. In October, 2014 an application dt 09.10.2014 was filed by the petitioner seeking transfer of the case in terms of the judgment of Hon'ble Supreme Court, but the application was dismissed by Ld Trial Court.
Page 2 of 10 pages 33. Being aggrieved by impugned order petitioner has filed the present revision on the following grounds:
a) That Ld Trial Court erred in dismissing the application of petitioner ignoring the intent of the judgment of Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs State of Maharashtra and another.
b) That Ld Trial Court erred in ignoring that whenever two views could be possible a view in consonance with the intent of the judgment has to be taken and not contrary to it.
With these and similar grounds, petitioner has prayed for setting aside the impugned order.
4. I have heard arguments from Sh Rajesh Kumar, Ld counsel for petitioner/revisionist and from Sh Chander Maini, Ld counsel for respondent. Ld counsel for revisionist has relied upon the judgment of Dashrath Rupsingh Rathod vs State of Maharashtra decided on 01.08.2014 in Crl. Appeal No. 2287 of 2009, by Hon'ble Supreme Court of India. Whereas Ld counsel for respondent has relied upon the following authorities;
1. Crl. M. C No 4958/2014 Harpreet Singh vs State (Govt of NCT of Delhi).
2. Tr. P (Crl) 11/2015 Naveen Malhotra vs State (Govt of NCT of Delhi).
5. I have considered the arguments advanced by Ld counsel for Page 3 of 10 pages 4 the parties. I have also gone through the judgments relied upon by Ld counsel for the parties and gone through trial court record.
6. The main contention of Ld counsel for the revisionist in the present case is that in view of the judgment of Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs State of Maharashtra and another, (mentioned above), Ld Trial Court had no jurisdiction to try the case and accordingly the case u/s 138 N I Act should have been returned to the complainant to be filed before the court of competent jurisdiction at Goa, but Ld Trial Court refused to transfer the case on the ground that judgment of Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs State of Maharashtra and another (mentioned above) does not apply to the present case as the proceedings have reached to the stage of the application u/s 145 (2) N I Act.
7. On this, Ld counsel for revisionist had further stressed that Ld Trial Court had not properly appreciated the judgment passed in Dashrath Rupsingh Rathod vs State of Maharashtra and another by Hon'ble Supreme Court, as in view of the said judgment, Ld Trial Court had no jurisdiction to continue with the proceedings. On the other hand, the contention of Ld counsel for respondent had been that in the judgment of Dashrath Rupsingh Rathod vs State of Maharashtra and another Page 4 of 10 pages 5 (mentioned above), Hon'ble Supreme Court has specifically explained the cases which are to be transferred and the cases which are not to be transferred. Ld counsel for respondent has also relied upon the two judgments passed by Hon'ble High Court of Delhi wherein Hon'ble High Court has categorically decided that once the stage u/s 145 (2) N I Act has been reached, the matter is not to be transferred.
8. After considering the judgments relied upon by Ld counsel for the parties, the provisions of law and the facts of the present case, I am of the opinion that the revision as filed is not maintainable and is liable to be dismissed.
9. In the present case, it is clear from the trial court record that the complaint was filed in the year 2008. Till 2013, notice could not be framed against the accusedrevisionist as he has absented himself on several occasions. It is also clear from the record that many times cost were imposed and even NBWs were issued against the revisionist for non appearance. Even otherwise, as per the record on 31/10/13, notice u/s 251 Cr.P.C was framed against the revisionist/accused to which he pleaded not guilty.
10. In the order passed by Hon'ble Mr Justice S. N Dhingra of Hon'ble High Court in case Rajesh Aggarwal vs State, 171 (2010) DLT 51, steps have been laid down for deciding the complaints u/s 138 N I Act:
Page 5 of 10 pages 6The summary trial procedure to be followed for offences u/s 138 N I Act would thus be as under:
Step 1On the day complaint is presented , if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint and documents and if commission of offence is made out, take cognizance and direct issuance of summons of accused, against whom case is made out. StepII If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 Cr.P.C and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145 (2) N I Act for recalling a witness for crossexamination on plea of defence. StepIII if there is an application u/s 145 (2) N I Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. StepIV To hear arguments of both sides. StepV to pass order/judgment.
11. In view of the judgment in Rajesh Aggarwal vs State, after Page 6 of 10 pages 7 framing of notice u/s 251 Cr.P.C, it was the duty of the revisionist/accused to either file the application u/s 145 (2) N I Act for recalling of witnesses for cross examination or to lead defence evidence, as per the plea of defence taken by him after the framing of charge/notice u/s 251 Cr.P.C, the next stage in proceedings u/s 138 N I Act is to either move application u/s 145 (2) N I Act or to lead defence etc.
12. In Dashrath Rupsingh Rathod vs State of Maharashtra and Anr (mentioned above), Hon'ble Supreme Court has mentioned in para 20 about the cases which are to be transferred and differentiated between the cases which are not to be transferred. In this case Hon'ble Supreme has observed that:
"Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section u/s 145 (2) N I Act of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the presummoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Page 7 of 10 pages 8 Complaint cases where proceeding have gone to the stage of u/s 145 (2) N I Act or beyond shall be deemed to have been transferred by us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending".
13. Thus from the judgment in Dashrath Rupsingh Rathod's case, it is clear that when the proceedings have reached upto the stage of section 145 (2) N I Act the same matter has to continue in the courts where they were pending at the stage. As per the judgment of Hon'ble Supreme Court, these cases will be deemed to have been transferred to that court. Thus, after the case u/s 138 N I Act has reached to the stage of moving an application u/s 145 (2) N I Act, no transfer of that case is to take place.
14. Similarly in the case before Hon'ble High Court in Crl. M.C No. 4958/2014 Harpreet Singh vs State, Hon'ble Mr Justice V. P. Vaish had considered the similar situation based in the light of Dashrath Rupsingh Rathod's case had opined that:
"In the para 22 of the renowned Dashrath Rupsingh Rathod's case the Apex Court observed that the category of complaint cases where proceedings have gone to the stage of section 145 (2) of the Page 8 of 10 pages 9 Act or beyond shall be deemed to have been transferred from the court ordinarily possessing territorial jurisdiction, as clarified therein, to the Court where it is presently pending. Thus, it is only when the cases filed under section 138 of the NI Act have reached the stage of Section 145 (2) of the N I Act or beyond thereof that these case shall continue to be dealt with by the court where it is already pending trial."
15. In view of this judgment, I am of the opinion that in the present case, since the stage of section 145 (2) N I Act has reached on 08/07/2015. Even if it is considered that the application u/s 145 (2) N I Act was not allowed on that date as the same was not available on record but the stage had already reached, as the notice was framed on 31/10/13 and revisionist has availed the opportunity to cross examine the witness on 04/08/14. Therefore, at the time of passing of the judgment in Dashrath Rupsingh Rathod's case , present case before Ld Trial Court had reached the stage of section 145 (2) N I Act and therefore Ld Trial Court has rightly decided that this case is not to be transferred to any other court.
Page 9 of 10 pages 1016. In view of above discussion, I am of the opinion that there is no infirmity in the order passed by Ld Trial Court. Hence the revision as filed is dismissed. Parties are directed to appear before Ld Trial Court on 28/05/2015.
17. Trial court record be sent back to Ld Trial Court with the copy of the order. File of revision be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 21st May, 2015.
( SHAIL JAIN ) ADDL. SESSIONS JUDGE (CENTRAL) DELHI Page 10 of 10 pages