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Through Its Authorized Representative vs Madhulika Saraf on 22 November, 2017

  IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
     (PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS
                      NEW DELHI

Criminal Revision No.: 35/17

In the matter of:

M/s AVJ Developers (India) Pvt. Ltd.,
Having Regd. Office At:
Plot No. C, Community Centre,
Anand Vihar, Delhi-110092.

Through its Authorized Representative
Mr. Navneet Malhotra.                   .......... Petitioner

                               VERSUS

Madhulika Saraf
W/o Ram Kishan Saraf
R/o J-97, Ground Floor
Saket, New Delhi-110017.                .......... Respondent


Criminal Revision No.: 36/17

In the matter of:

M/s AVJ Developers (India) Pvt. Ltd.,
Having Regd. Office At:
Plot No. C, Community Centre,
Anand Vihar, Delhi-110092.

Through its Authorized Representative
Mr. Navneet Malhotra.                   .......... Petitioner

                               VERSUS

Kaushilya Saraf
W/o Banwari Lal Saraf
R/o J-97, Ground Floor
Saket, New Delhi-110017.                .......... Respondent


CR No. 35/17 & 36/17                                  Page 1 of 6
 Date of institution of Applications                :          24.01.2017
Date of reserve for order                          :          31.10.2017
Date of order                                      :          22.11.2017

ORDER

The afore-said applications under section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C.), made by the applicant AVJ Developers (India) Pvt. Ltd. (hereinafter referred to as 'the accused') against the respondents Madhulika Saraf and Kaushilya Saraf (hereinafter referred to as 'the complainant'), are directed against the common order dated 13.01.2017, passed by the court of Metropolitan Magistrate-02, NI Act, South, Saket, New Delhi, whereby, in complaint cases no. 470677/16 (56/2016) entitled Madhulika Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors. and 470676/16 (57/2016) entitled Kaushilya Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors., the Learned Metropolitan Magistrate dismissed the similar applications filed by the applicants under section 219 and 220 of the Cr.P.C.

2. The circumstances giving rise to the applications are that the complainants made separate complaints under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the N.I. Act') against the accused persons, namely, AVJ Developers (India) Private Limited, Vinay Jain, Asha Jain and Vipin Aggarwal with the view to take cognizance of the offence and to summon, try and punish CR No. 35/17 & 36/17 Page 2 of 6 them for having committed the said offence. The details of complaint cases are as under:

CR No. Complaint No. Cheque No. & date Amount in INR 35/17 470676/16 067258 16.12.2015 1,05,00,000 (57/16) 067226 16.11.2015 78,750 067227 16.12.2015 78,750 36/17 470677/16 067259 16.12.2015 1,42,00,000 (56/16) 067201 16.12.2015 1,06,500 067203 16.10.2015 1,06,500 067202 16.11.2015 1,06,500

3. At the stage of complainant's evidence, the accused made an application under sections 219 and 220 Cr.P.C. for single trial of the above-said two complaint cases.

4. On 13.01.2017, the above-said applications were dismissed by the Learned Metropolitan Magistrate. Vide the impugned common order, while dismissing the application, the Learned Metropolitan Magistrate, inter alia, observed as follows:-

"......By way of this order, this court shall decide an application U/s 219 & 200 Cr.P.C moved on behalf of accused for single trial of various matters filed by the complainants against the same accused arising out of the same / similar transaction and for exemption of accused from personal appearance till disposal of the present application.

XXX XXX XXX XXX XXX Arguments heard. Report perused.

Though the allegations and averments are similar in nature inn both the complaints but the liability of the accused qua complainant in each case is independent and it cannot be said that cheques had been issued for the same transaction as each contract between complainant and accused company is independent of the transaction between complainant and accused persons.

In view thereof, application is dismissed being devoid of merits."

5. Feeling aggrieved of the impugned order, the applicant has made the aforesaid applications.

6. I have heard SPA of the respondent and have gone through the record of the complaint case no. 470677/16 (56/2016) entitled Madhulika Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors. and case no. 470676/16 (57/2016) entitled Kaushilya Saraf v. AVJ Developers (India) Pvt Ltd. & Ors., pending before the Learned Magistrate. None appeared for the applicant / revisionist for addressing arguments despite several opportunities granted, therefore, the court proceeded to dispose off the matter without hearing arguments on behalf of the applicant.

7. It is submitted by SPA of the respondent that the complainants in the two complaints sought to be tried by single trial are different persons so these complainants cannot be tried by single trial. SPA of the respondent has referred to the judgment in Gulshan Kumar Pahuja v. Veena Sharma, 107 (2003) DLT 725 to argue that our own High Court has held that impugned order is an interlocutory order and revision petition against such order is not maintainable.

8. I have given my thoughtful consideration to the submissions made on behalf of the respondents and the grounds taken by the applicant in the revision petition.

9. As already observed, vide the impugned order, the Learned Metropolitan Magistrate dismissed the application made on behalf of the accused for single trial of various matters.

10. A perusal of record of complaint cases reveals that the complaint case no. 56/2016 has been filed by Madhulika Saraf and the complaint case no. 57/2016 has been filed by Kaushilya Saraf. Although the accused persons in both the complaint cases are same but the complainant are two different persons, therefore, I am of the view that there cannot be a single trial for the above-said two complaints.

11. Even otherwise, it has been held by Hon'ble Delhi High Court in Gulshan Kumar Pahuja's case (supra) that the order or application under sections 219/220 Cr.P.C. does not have the effect of finally deciding any issue involved in the case nor it brings any proceedings to culmination; it is purely interlocutory in nature, therefore, in view of section 397 (2), Cr.P.C. the revision petition against such order is not maintainable.

12. In view of above discussion, I find no illegality and irregularity in the impugned order, dated 13.01.2017, passed by Learned Trial Court. The revision is without merit and, therefore, dismissed.

13. Files be consigned to the Record Room. The record of the complaint cases no. 470677/16 (56/2016) entitled Madhulika Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors. and 470676/16 (57/2016) entitled Kaushilya Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors., called from the court of the Learned Magistrate be sent back alongwith a copy of this order.

14. The parties are directed to appear before the Learned Trial Court on 28.11.2017 at 2.00PM.

Announced in the open court (DR. RAKESH KUMAR) on this 22nd day of November, 2017 Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi CR No. 35/17 & 36/17 Page 6 of 6