Delhi District Court
M/S. Madura Coats Pvt. Ltd vs M/S. H.P. Sales Depot on 25 April, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 118/2018
In the matter of:
M/s. Madura Coats Pvt. Ltd.
BII/35, Mohan Coop. Ind. Estate,
Mathura Road, Badarpur,
New Delhi 110044
Through Shri Arvind Kumar, Authorized Representative.
....Petitioner.
Versus
1. M/s. H.P. Sales Depot,
Through its sole proprietor Shri Lalit Mittal,
5654, Basti Harphool Singh,
Sadar Bazar, Delhi 110006
2. Shri Lalit Mittal
Sole proprietor of M/s. H.P. Sales Depot,
5654, Basti Harphool Singh,
Sadar Bazar, Delhi 110006
.....Respondents.
Date of Institution : 06.04.2018
Date of Arguments : 25.04.2018
Date of Decision : 25.04.2018
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JUDGMENT
1. Vide this judgment, I shall decide revision petition against the order dated 02.04.2018 passed by Ld. MM. Vide which Ld. MM has dismissed the application filed by the petitioner.
2. Aggrieved by order dated 02.04.2018, the petitioner has filed the present revision petition on the grounds that the order is bad in law. Ld. Trial Court did not consider that the matter has not been delayed by the petitioner but has been delayed by the respondents. Ld. Trial Court erred in not allowing the application under Section 311 Cr.P.C and the relevancy of the documents has been duly explained by the petitioner. It is also mentioned that Ld. Trial Court heard the counsel for the petitioner for about 23 minutes only and also did not even afford an opportunity to explain the circumstances. Ld. Trial Court also did not consider that documents can be produced at any stage of the trial and certificate under Section 65B of the Indian Evidence Act can be filed at any stage of the trial. Ld. Trial Court did not consider that details of the invoices which the petitioner is intending to file on the record is already on the record in the form of statement of account for the year 20052006 and in the absence of those invoices, the factum of purchases made by the respondents could have been proved by CR No. 118/18 2 of 7 07.01.2017 calling the record from the VAT department. The respondent has stated in the court that he is not willing to adduce any defence evidence. Ld. Trial Court did not consider the scope of Section 311 Cr.P.C. It is prayed that order dated 02.04.2018 be set aside.
3. I have heard Ld. counsel for the petitioner and Ld. counsel for the respondent at length and perused the records of this court as well as Trial Court very carefully.
4. Perusal of the Trial Court Record reveals that the petitioner has filed complaint under Section 138 NI Act against the respondents that in discharge of liability accused no. 2 delivered a cheque bearing No. 160667 dated 19.07.2007 drawn on Keshav Sehkari Bank Ltd. amounting to Rs. 50,00,000/. The cheque when presented was dishonoured for the reason insufficient fund vide memo dated 21.07.2007. The complainant sent a notice to the accused on 24.07.2007 but despite service accused did not make the payment and on the basis of these averments complaint was filed.
Perusal of the file further reveals that notice under Section 251 Cr.P.C was served upon the respondents on 07.04.2010 and in evidence AR of the complainant has examined himself as CW1 and C.E was closed on 26.06.2013. On 24.09.2013 statements of accused persons were recorded CR No. 118/18 3 of 7 07.01.2017 and an application under Section 45 of Indian Evidence Act for sending the document to CFSL was filed by the accused. On 22.03.2018 the complainant has filed the application under Section 91 r/w Section 254(2) Cr.P.C for summoning the relevant record from the VAT department, VAT Ward No. 32, Delhi for financial year 200506 in respect of accused person M/s. H.P. Sales Depot, Sales Tax registration No. 32/130596/0588. The complainant has also filed an application under Section 311 Cr.P.C for recalling the complainant witness Arvind Kumar and for summoning of record from the court of M/s. Ritu Singh, Ld. MM. In the application under Section 311 Cr.P.C, it is mentioned that accused/ respondent has filed criminal complaint under Section 420/465/468/471 IPC against the complainant and others. It is also mentioned that the above mentioned complaint is arisen from the present criminal complaint and same is pending in the court of Ms. Ritu Singh, Ld. MM, New Delhi. It is also mentioned that complainant Mr. Lalit Mittal in the said complaint has extensively cross examined and his further cross examination is yet to be concluded. The petitioner sought permission to produce the 37 invoices raised on the accused persons during the financial year 20052006. It is also mentioned that the original of the invoices are with the accused persons and the duplicates of the invoices were in custody of Sh. Jagdish Dhiman, the erstwhile AR examined as CW1 and cross examined by the accused person CR No. 118/18 4 of 7 07.01.2017 and he was instructed to place the invoices on the record but he did not do so and unfortunately expired on 21.02.2014 and the duplicate copies of the invoices could not be traced or subsequently placed on record as the whereabouts of the same were within the knowledge of deceased AR Sh. Jagdish Dhiman only. Recently in February, 2018, after long persistent efforts, the photocopies of the above mentioned documents are traced and the above mentioned are necessary. It is also mentioned that it is necessary to prove these documents. The complainant prayed that the application filed by the applicant be allowed and he be allowed to place on record certificate u/s. 65B of the Indian Evidence Act. He also prayed that AR Sh. Arvind Kumar be recalled for examination and to prove the documents mentioned in para no. 8 of the application. He also prayed that the record of the complaint filed by accused person against the complainant pending in the court of Ms. Ritu Singh, Ld. MM be also summoned.
Reply to the application under Section 311 Cr.P.C filed by the respondent before the Ld. Trial Court wherein it is mentioned that present application has been filed to delay the matter. In reply, it is also mentioned that complainant has forged and fabricated 29 debit notes. The complainant has not explained as to why the record of complaint No. 55250/2016 is relevant in the present complaint. In reply on merits, similar averments were made. Dismissal of the application is prayed by the respondents.
CR No. 118/185 of 7 07.01.2017
5. Perusal of the file reveqals that notice under Section 138 NI Act was served upon the accused on 07.04.2010 and the AR of the complainant appeared as CW1 and filed affidavit in evidence and in this affidavit there is no mention of the invoices. Similarly, in the complaint, there is no mention of the invoices. Thus, CW1 at the time of filing of the complaint and at the time of examination has not filed documents nor it was mentioned in the complaint or in the affidavit that the original invoices are misplaced. Now, the petitioner wants to place on record the photocopy of the invoices on the ground that the CW1 could not place the invoices on the record as they could not be traced and whereabouts of the same were within the knowledge of CW1 and thereafter, subsequent AR Sh. Sachindra Acharya could not trace the same in the complainant's office and the copies of invoices have been traced by the present AR in February, 2018. I am of the view that the version put by the complainant is not acceptable, as the petitioner has no where mentioned in the complaint or in the affidavit of CW1 that the invoices have been misplaced. By way of the present application, the applicant also wants to place on record the cross examination of complainant Sh. Lalit Mittal in CC No. 55250/2016. This cross examination was conducted by Ld. counsel for the petitioner 21.12.2017 and the cross examination is still continuing and not complete. I am of the view in the present case, the petitioner has filed complaint that to CR No. 118/18 6 of 7 07.01.2017 discharge the liability, the respondent had issued cheque, whereas the respondent has filed the complaint No. 55250/2016 on the other facts.
6. In view of the above discussions, I am of the view that the Ld. MM has rightly dismissed the application under Section 311 Cr.P.C filed by the petitioner and passed a reasoned order. The revision petition filed by the petitioner is hereby dismissed as same is without any merits.
Trial Court Record be sent back with copy of judgment. Revision file be consigned to record room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 25.04.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
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