Delhi District Court
M/S B B C Chit Fund Pvt. Ltd vs S P Jain & Ors on 19 November, 2012
IN THE COURT OF SHRI ARUN KUMAR, METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC No: 513/12
M/s B.B.C. Chit Fund Pvt. Ltd.
Having office at:
217, Express Tower
Commercial complex, Azadpur, Delhi
Through its Director/Authorized Representative
Sh. Achint Kumar sinha ..............Complainant
Versus
1.S P Jain s/o Not Known R/o A-149, 2nd Floor Yojna Vihar, Delhi
2. M/s International Agro Oil Industries Ltd.
233, FIE estate, Patparganj Indl. Estate Delhi-110092 Through its Director Sh. S.P.jain ................Accused ORDER ON APPLICATION UNDER SECTION 395(2) CrPC 19.11.2012
1. Vide this order, I shall dispose of the application under section 395 (2) CrPC moved on behalf of the complainant.
2. The present application under section 395 (2) of CrPC has been filed by the complainant through its Director seeking reference of alleged issues of law to Hon'ble High Court of Delhi for seeking their decision on the same. As per the application, the aforesaid questions of law are:-
a. Can the Magistrate conducting trial under summons M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 1 of 18 triable case, as per Chapter XX of CrPC in absence of accused conduct the trial?
b. Can the Magistrate conducting trial under summons triable case, as per Chapter XX of CrPC in absence of accused, record the followings as detailed in the order sheet dated 21.04.2012:-
(i) Oral request had been made by accused ..................?
And/or
(ii) Relief is given to accused on his oral request, though the accused is not present in the court?
And/or
(iii) Accused statement that matter could not be settled, because of .............. though he was not present in the court?
(iv) Directions are given to the complainant as per desire of accused who is not present in the court?
c. Can the Magistrate conducting trial under summons triable case, as per Chapter XX of CrPC at the asking of accused in a case under section 138 NI Act w.r.t. a particular transaction relating to a particular cheque direct the complainant to bring the entire financial transaction record of last 10-12 years, so that the accused could settle the complainant with the complainant?
d. Can the Magistrate conducting trial under summons triable case, as per Chapter XX of CrPC force the complainant M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 2 of 18 to settle the matter with the accused as per desire of the accused?
e. Can the Magistrate conducting trial under summons trial under summons triable case, as per Chapter XX of CrPC review its own order dated 29.03.2012, wherein, the last and final opportunity was given to the accused to settle the matter, failing which, the matter was directed to be proceeded on merits without any further opportunity for settlement? f. Can the Magistrate conducting trial under summons triable case, as per Chapter XX of CrPC be said to be conducting the present trial fairly?
3. The aforesaid application has been moved by the complainant company in the following back drop of facts:-
The Complaint u/s 138 of the NI Act was filed by the complainant company against the accused on account of alleged dishonour of cheque no. 109227 dated 25.01.2011 for a sum of Rs.6,27,000/- issued by the accused in favour of the complainant allegedly in discharge of his liabilities towards the complainant under some chit transaction between the parties. According to the complainant the aforesaid cheque issued by the accused was dishonoured on account of insufficiency of funds in the bank account of accused and despite service of legal demand notice by the complainant upon the accused, accused had failed to make the payment of the aforesaid cheque within the stipulated period and as such M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 3 of 18 he has committed the offence under section 138 N I Act. On receipt of the complaint and after tendering of affidavit in pre-summoning evidence by AR of the complainant, the accused was summoned vide order dated 15.11.2011 in response to which accused had appeared on 25.08.2011 and was granted bail and the complainant was directed to supply copy of complaint along with relevant documents to the accused and matter was adjourned for the aforesaid purposes on various dates. In the meantime, matter was transferred to this Court in terms of order dated 02.1.2012 passed by Ld. District Judge, Delhi and since then none had appeared on behalf of the accused and NBW were directed to be issued against the accused for the next date. On 14.03.2012 accused had got his NBW cancelled and was admitted to bail on furnishing PB and SB of Rs. 10,000/- each and the matter was fixed for further proceeding on 29.03.2012. On 29.03.2012 accused expressed his willingness to settle the present complaint with the complainant provided statement of account is provided to the complainant company and accordingly the complainant was directed to supply copy of statement of account to the accused at least 3 days in advance before the next date of hearing.
However, despite repeated directions the complainant had failed to supply the complete statement of account of the accused pertaining to all the transactions entered into between the parties though a summary of statement of account pertaining to the chit transaction in question was supplied by the complainant to the accused. Since the complainant had failed to supply the consolidated statement of account of the accused M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 4 of 18 despite repeated directions and despite the fact that even in his reply to the legal notice of the complainant, the accused had demanded the complete statements of his account with the complainant company, this court in the peculiar facts and circumstances of the case considered it fit to examine the director of the complainant company who was present in the court on 05.06.2012 in order to elicit the facts as to whether the complainant can supply the consolidated statements of account of the accused. During his examination it was admitted by director of the complainant company that the accused was dealing with the complainant for last 10-12 years, however, he will have to verify whether the record of statements of account of the accused for the said period was or was not available before he undertakes to supply the same to the accused. And accordingly matter was adjourned for verification/supply of complete statement of account to the accused and for further proceedings to 23.07.2012. However, on 23.07.2012 the complainant has once again placed on record the summary of statement of account of the accused pertaining to chit transaction in question and no consolidated statement of account as per the directions of the court were supplied to the accused and though it was stated in letter dated 12.07.2012 that the records are kept for last six years but even the statement of accounts for the chit group nos. BBC-500/5 and BBC-500/6 were not supplied by the complainant to the accused. At the same time the present application purportedly under Section 395(2) of the Cr.P.C. seeking reference of the aforesaid alleged issues of law to Hon'ble High Court of Delhi was M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 5 of 18 moved on behalf of the complainant.
4. On receipt of the aforesaid application, this court once again examined the director as well as AR of the complainant in view of the fact that the application was not supported by any affidavit, though the same was containing certain contemptuous allegations against the presiding officer while taking the shield of certain typographical mistakes in the order sheet dated 21.04.2012. In the application it has been alleged by the director of the complainant company that on 21.04.2012, the court had recorded the submissions of the accused and passed order favourable to the accused though the accused was not present in the court as is apparent from the perusal of order sheet wherein accused had been stated to be absent. Besides it has been alleged that the court had adjourned the matter at the request of the accused for settlement without recording the consent of the complainant. During his examination dated 23.07.2012, while it was admitted by the director of the complainant that he was not present in the court at the time of passing the order dated 21.04.2012 by this court and that the complainant had always been ready and willing to settle the present complaint with the accused and no settlement was ever forced upon the complainant by this court, AR of the complainant in his examination admitted that the order dated 21.04.2012 was passed in his presence and in the presence of the accused after hearing the submissions of the accused. In view of the aforesaid facts and admissions on the part of AR as well as director of the accused a show cause notice was issued to the director of the complainant for making false allegations in the M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 6 of 18 application without making any effort to ascertain the truth thereof though he was not present in the court on 21.04.2012 and despite the fact that the order was passed in the presence of AR of the complainant. Simultaneously the matter was fixed for reply and arguments on the maintainability of aforesaid application. On the next date of hearing a reply to the application was filed on behalf of the accused thereby denying the allegations of the complainant and praying for dismissal of the application with cost as no questions of law arose for reference to Hon'ble High Court, however the complainant sought adjournment to advance arguments on the maintainability of the application and to file reply to show cause notice dated 23.07.2012 and the matter was accordingly adjourned to 26.09.2012 for further proceedings. On 26.09.2012 once again adjournment was sought on behalf of the complainant on the ground of non-availability of counsel for the complainant and the matter was accordingly adjourned to 18.10.2012. On 18.10.2012, though the director of the complainant/noticee remained absent but AR of the complainant appeared along with Sh. Amitesh Gaurav, proxy counsel for the complainant and stated that the complainant does not wish to advance any arguments on the maintainability of the application under Section 395(2) of the Cr.P.C. and will abide by any order passed by this court. Besides, the complainant has filed a reply to show cause notice dated 23.07.2012 in which it was stated by it that the complainant has made no error in stating facts in his application under Section 395(2) of the Cr.P.C. but in view of the M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 7 of 18 observations made by this court in its order dated 23.07.2012, the complainant tenders unconditional apology for moving the application. It has further been submitted by proxy counsel for the complainant that the complainant shall abide by any order passed by this court.
5. I have heard the submissions made on behalf of both the parties and have perused the entire material available on record. At the very threshold, I would like to observe that the application raises no issue of law which requires its reference to Hon'ble High Court for decision thereon in as much as while dealing with the complaint in hand the court has not violated any provision of law. So far as the issue of opportunity given to the accused in the first instance for settlement is concerned, the same had been given in consonance with directions/guidelines of Hon'ble supreme Court of India in Damodar S.Prabhu vs Sayed Babalal's case decided on 3 May, 2010 wherein it has been observed as follows:
"13. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice- delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 8 of 18 on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 of the CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. As mentioned earlier, the learned Attorney General's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complainant's case. In such cases it would be desirable if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through the specified forums. ........
M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 9 of 18
15. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:-
THE GUIDELINES
(i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit."
M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 10 of 18
6. Thus the court gave the accused one opportunity to settle the complaint with the complainant immediately on his first appearance after transfer of the present complaint case to this Court and in order to facilitate the same the complainant was directed to supply the statement of account of the accused. It was further observed in the order sheet dated 29.03.2012 that no further opportunity shall be given to the accused to settle the complaint in case no settlement is arrived at between the parties by the next date of hearing, meaning thereby, that in case the accused fails to settle the complaint by the next date, the matter shall proceed further on merits and the accused shall be liable to deposit a cost equal to 10% of the cheque amount with DLSA in terms of aforesaid guidelines in case of a belated settlement. However, further opportunities were necessitated by the conduct of the complainant who failed to supply the complete statement of account of the accused pertaining to transactions entered into between the parties during last 10-12 years and the same does not amount to review of order dated 29.03.2012 as has been alleged by the complainant while framing the question no. (e) for reference.
7. So far as the issue of not recording consent of the complainant for settlement is concerned, it is very much apparent from the examination of AR as well as director of the complainant dated 23.07.2012 that no effort were ever made by the court without the consent of the complainant and both the director as well as the complainant expressed their willingness to settle the complaint on 23.07.2012. Order sheet of the court cannot be an encyclopedia of all the words uttered by the parties on a particular date, M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 11 of 18 though the same must contain the substance of submissions made by the parties and necessary directions to the parties for compliance. Thus merely because it has not been mentioned in the order sheet that the complainant had consented to the request of accused for settlement does not mean that no such consent was given by the complainant or that the court was forcing the complainant to settle the complaint at the request of accused only. That it was not so in the present case is clear from the bare perusal of testimonies of AR as well as the director of the complainant dated 23.07.2012. In view of the aforesaid discussions question no. (d) as framed by the complainant does not arise at all.
8. So far as the issue regarding the powers of the court to call for consolidated statement of account at the request of accused for all the chit transactions between the parties are concerned attention is hereby invited to the provisions of Section 91 of the Cr.P.C. which reads as under:
"91. Summons to produce document or other thing.
Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 12 of 18 instead of attending personally to produce the same. (3) Nothing in this section shall be deemed -
(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence Act, 1891(13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
Thus by virtue of the provisions of Section 91 of the Cr.P.C. the court is empowered to call for production of any document which it considers necessary or desirable for the purposes of any investigation, inquiry, trial or any other proceedings irrespective of nature of case i.e. be it a summons triable case, warrants triable case or sessions triable case or even a summary triable case like the case in hand. In the considered opinion of this court the production of the consolidated statement of account of the accused for all the chit transactions between the complainant and accused was very much necessary in view of the stand taken by the accused in his reply to legal notice as well as in the court more so in view of the fact that offence alleged against the accused was under Section 138 of the NI Act and same can only be said to have been committed when the cheque in question would have been issued in discharge of any legally enforceable debt or liability. In order to calculate the legally enforceable debt or liability of the accused towards the complainant it would not be sufficient to go through the statement of account of the accused pertaining to chit transaction in question but the M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 13 of 18 statement of all the transactions between the parties was required to be studied. Similarly in order to give a real opportunity to the accused to settle/compound the offence at the initial stage in terms of guidelines of Hon'ble Supreme Court in Damodar S. Prabhu's case, it was essential that a consolidated statement of account of the accused be supplied to the accused because if the same was not supplied at the initial stage and if the accused settles the case at a belated stage as and when the aforesaid statement of account is supplied to the accused during the conduct of trail of the case, the accused could have been burdened with a cost equal to 10% of the cheque amount in question. Thus even the question (c) as framed by the complainant does not arise in view of the aforesaid discussions.
9. So far as the powers of the court to examine the director of the complainant on 05.06.2012 and 23.07.2012 and the AR of the complainant on 23.07.2012 are concerned a reference is invited to the provisions of section 311 of Cr.P.C. which reads as follows:
"311. Power to summon material witness, or examine person present.
Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
The aforesaid section empowers the court to examine any person in M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 14 of 18 attendance at any stage of any inquiry, trail or other proceedings provided his examination appears to it to be essential for the just decision of the case. Once again the aforesaid provision is applicable irrespective of the nature of proceedings and irrespective of the stage of proceedings. As far as the issue regarding satisfaction of the court about the necessity for just decision of the case is concerned the same is apparent on a bare perusal of order sheets dated 05.06.2012 and 23.07.2012 as well as the observations made in the preceding paragraphs. Besides, the court has similar powers in terms of Section 165 of the Evidence Act which reads as under:-
"165. Judge's power to put questions or order production - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question. Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.
Provided also that this Section shall not authorize an Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted."
M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 15 of 18
10. Besides, as has already been observed, in view of admissions of AR as well as director of the complainant during their examination dated 23.07.2012 the question (a) and (b) as framed by the complainant also do not arise for reference to Hon'ble High Court.
11. Therefore in view of the aforesaid discussions it is apparent that the court has conducted the proceedings in the present case in a fair and impartial manner and strictly in consonance with provisions of law and as per the guidelines issued by the superior courts from time to time and none of the alleged questions of law, reference of which has been sought by the complainant to Hon'ble High court of Delhi, have arisen during the trial of the present complaint case and as such the application of the complainant purportedly under Section 395(2) of the Cr.P.C. is hereby dismissed.
12. Before parting with the order, I would like to observe that the counsel for the complainant, being an officer of the court, has failed to perform his duties towards the court by leveling serious allegations against the court deriving the benefit from some typographical errors in the order sheet dated 21.04.2012. Before leveling the allegations he was duty bound to ascertain the truth from the AR of the complainant in whose presence the order dated 21.04.2012 was passed by this court. Besides, he should have applied his mind before acting upon the wordings of the order sheet dated 21.04.2012 and should have understood M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 16 of 18 that no court could ever have recorded the detailed submissions on the part of accused in the absence of accused or his counsel and a thoughtful consideration would have enabled him to realize that there was some typographical error in the order sheet. In my considered opinion, immediately on seeing the irregularity in the order sheet dated 21.04.2012, the complainant as well as the counsel for the complainant were duty bound to move an appropriate application for rectification of typographical/clerical mistake in the aforesaid order sheet. However, they have chosen to level the allegations against the Court under the grab of moving an application under section 395 (2) CrPC irrespective of the fact that no question of law can be said to have arisen which requires any reference to the Hon'ble High Court. Even if we accept that by virtue of wording of order sheet dated 21.04.2012, there arises certain questions, the aforesaid questions were at the most pure questions of fact and not of law and could have been clarified by the court in the subsequent order sheets provided the same were brought to the notice of this court by the counsel for the complainant in the discharge of his duties as an officer of the Court.
13. Thus, in my considered opinion, the present application moved on behalf of the complainant is a sheer abuse of process of court and has been moved by the complainant with a view to drag the proceedings in the present complaint case and as an excuse for non-compliance of lawful directions given by this court from time to time and accordingly a cost of Rs. 20,000/- is imposed on the complainant to be deposited with DLSA M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors CC NO:513/12 Order Dated 19.11.2012 17 of 18 for necessitating the adjournments in the trial of main complaint case by moving the aforesaid frivolous application. The complainant is directed to deposit the aforesaid cost within a period of 15 days from today.
14. Ordered Accordingly.
Pronounced in the Open Court on this 19th day of November 2012. This Order consists of 18 signed pages.
(ARUN KUMAR)
Metropolitan Magistrate:Dwarka Courts
M/s B B C Chit Fund Pvt. Ltd Vs S P Jain & Ors
CC NO:513/12
Order Dated 19.11.2012 18 of 18