Delhi High Court
Vidhu Seth vs State & Anr. on 19 February, 2013
Equivalent citations: 2013 ACD 1246 (DEL), (2013) 129 ALLINDCAS 478 (DEL), (2013) 2 NIJ 250, (2014) 1 CIVLJ 617, 2013 (83) ACC (SOC) 26 (DEL)
Author: Pratibha Rani
Bench: Pratibha Rani
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 19th February, 2013
+ CRL.REV.P.446/2011
VIDHU SETHI ..... Petitioner
Through : Ms.Sanjana J.Bali, Mr.Saurabh
Seth and Ms.Shweta Kapoor,
Advs.
versus
STATE AND ANR. ..... Respondents
Through : None for R-1.
Mr.Mudit Jain and Mr.Hemant
Chauhan, Advs. for R-2.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
%
PRATIBHA RANI, J. (ORAL)
Crl.Rev.P. 446/2011 & Crl.M.A. No.1811/2011 (Stay)
1. The petitioner is facing trial in a case filed under Section 138 of Negotiable Instrument Act. She has filed this Criminal Revision Petition feeling aggrieved by the order dated 03.09.2011 passed by learned Addl.Session Judge, Incharge South-West District, Dwarka, Delhi whereby he allowed the revision petition filed by the complainant thereby permitting the complainant to confront the petitioner/accused with statement of account, during her cross examination.
2. This is the second revision petition filed in respect of the order as to whether petitioner can be confronted with the statement of account in Crl.Rev.P.446/2011 Page 1 of 7 her cross examination. This second revision petition is maintainable in view of the decision of Bombay High Court in the case Inayatullah Rizwi v. Rahimatuallah & Ors. 1981 CriLJ 1398 wherein it was observed that :
'We are, therefore, of the view that a revision to the High Court would be tenable at the instance of a party who is unsuccessful before the Sessions Judge, or who is aggrieved by his order. In other words, a concurrent finding of the Sessions Judge and of the Courts below become final, but when the Sessions Judge reverse the order of the Court below in revision the defeated party is not precluded from moving the High Court. The consensus of judicial opinion as can be seen supports only this view.'
3. Learned counsel for the petitioner has submitted that learned Addl. Sessions Judge, while allowing the revision petition filed by the complainant, failed to take note of the fact that learned MM in her order dated 01.07.2011 did not allow the complainant to confront the statement of account to the accused for the reason that what cannot be done directly cannot be allowed to be done indirectly at this stage. It has been further submitted that when material evidence has been withheld despite notice from the accused, in view of provisions of Section 164 of Evidence Act, the complainant cannot be allowed to put the statement of account during cross examination of accused when these documents were already in possession of the complainant but not produced on record at appropriate stage. Further the nature of the documents sought to be put to the accused in her cross examination is not the one as contemplated under Section 145 of the Evidence Act, hence the impugned order passed by learned Addl. Sessions Judge, Incharge South-West District, Dwarka, Crl.Rev.P.446/2011 Page 2 of 7 Delhi whereby he allowed the complainant to confront the accused with statement of account, needs to be quashed.
4. The contention of learned counsel for the petitioner is that a serious prejudice would be caused to the petitioner/accused if the complainant is allowed to bring on record the statement of account at the stage when accused has preferred to appear as defence witness in terms of Section 315 CrPC.
5. The grievance of the petitioner is that earlier she filed an application under Section 65/66 of Indian Evidence Act and the complainant had been given the opportunity to place on record the statement of account which he failed to do, resulting in inference by learned Trial Court that respondent/complainant has refused to file the statement of account. Once the complainant has refused to file the statement of account at the appropriate stage, now he cannot be permitted to confront the accused with the statement of account which opportunity he earlier failed to avail.
6. Here suffice it to mention that it was the petitioner/accused who was earlier insisting for the statement of account to be filed which the complainant failed to do at that stage but now wants to confront the petitioner/accused with the statement of account during her cross examination. There is no legal bar whereby the complainant can be prevented from confronting the accused with the documents during cross examination. The offence under Section 138 NI Act is technical in nature and the defences which an accused can take are inbuilt. The mandate of the legislature is that cases under Section 138 NI Act are to be tried summarily and the evidence led by way of affidavit by the Crl.Rev.P.446/2011 Page 3 of 7 complainant at pre-summoning stage is sufficient proof of the offence and that affidavit has to be read during trial unless accused moves an application in terms of Section 145(2) of NI Act disclosing the reasons why he wants to recall the witness and on what point, the witness is required to be cross examined. It has to be kept in mind that the offence under Section 138 NI Act is not of the kind of offences under Indian Penal Code where the State prosecutes the accused for committing the offence against the society. Dishonour of cheque has been made an offence under Section 138 NI Act so that the trust in commercial transaction is not destroyed. When it is in the special knowledge of the accused as to what is his defence and why he is not to be tried and convicted under Section 138 NI Act, he alone has to prove his defence and burden cannot be shifted on the complainant for the reason that in such type of cases, there is no presumption of innocence of the accused rather it is for the accused to rebut the presumption and prove his defence. In these circumstances, when statement of account pertaining to the account of the accused is sought to be confronted to the accused, it is for the accused to explain why the statement of account is not to be relied upon.
7. It is necessary to mention that a case under Section 138 NI Act is a technical offence and Section 143 of NI Act provides that all offences under this Chapter are to be tried by Judicial Magistrate of first class or Metropolitan Magistrate in accordance with summary trial provisions of Section 262-265 CrPC. Section 145(1) NI Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him Crl.Rev.P.446/2011 Page 4 of 7 on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. Thus, the contention of learned counsel for the petitioner that under Section 163 of Evidence Act, the statement of account cannot be confronted to the accused, is liable to be rejected.
8. Irrespective of the fact that complainant failed to produce the statement of account at the stage when the petitioner desired the original statement of accused to be brought on record, that does not deprive the complainant of its right to confront the petitioner/accused with the documents which were not earlier forming part of the record. Not only in criminal trials, even in civil suits where under Order 13 Rule 1 (1) CPC, all the original documents are required to be produced at or before the settlement of issues, Sub-Rule 3 of Order 13 Rule 1 CPC provides that nothing in sub-rule (1) shall apply to documents produced for the cross examination of the witnesses of the other party or handed over to a witness merely to refresh his memory.
9. In the case Niranjan Kumar vs. Smt. Poonam Chawla MANU/DE/9639/2006, the learned Single Judge has observed :
'7. There is no dispute about the proposition of law that if the witness denies those documents, then those documents certainly cannot be exhibited and the occasion to exhibit those documents would only arise if the witness admits those documents. This is so since in cross examination, opposite party has a right to practically pull out a document out of its pocket and confront the witness with that document, which relations to that witness.'
10. During course of arguments, learned counsel for respondent No.2, though fairly conceded that he cannot say as to why earlier the statement Crl.Rev.P.446/2011 Page 5 of 7 of account could not be produced, but there were two accounts, one trading account and another demat account. The accused was having the copies of statement of account and only for that reason, the complainant was asked to produce the original statement of account by filing an application under Section 65 and 66 of Evidence Act so that secondary evidence is not led by the accused.
11. Learned Addl. Sessions Judge, Incharge South-West District, Dwarka Delhi, while allowing the revision petition and permitting the respondent/complainant to confront the petitioner/accused with the statement of account, was of the view that :
'7. From perusal of the record, it shows that the respondent/accused Ms.Vidhu Seth preferred to examine herself as defence witness as DW-3. On 30.05.2011, during the cross examination of DW3, learned counsel for the revisionist/complainant wished to put statement of account from 1.4.2009 to 31.3.2010, 1.4.2010 to 31.3.2011 and 1.4.2008 to 31.3.2009 to the witness, which was not allowed by the court below vide order dated 1.7.2011. The witness in the present case, is herself the respondent/accused i.e. party to the transaction of her liability, therefore, she is a material witness to admit or deny the facts in question. The counsel for the revisionist was right in putting the aforesaid documents to the respondent/accused in the present case, to admit or deny the contents of the documents, to prove her liability. The court below was wrong in not permitting the counsel for the revisionist/complainant for putting the documents, mentioned above, to the party witness i.e. DW3 Ms.Vidhu Seth, who is the source of primary evidence. As such, I set aside the order dated 1.7.2011 and allow the revision petition of the revisionist.'
12. The petitioner is feeling aggrieved as the learned Addl. Sessions Judge has observed that the accused being party to the transaction of her Crl.Rev.P.446/2011 Page 6 of 7 liability, is a material witness to admit or deny the facts in question. I find that the revisional court has exercised the jurisdiction to correct miscarriage of justice and to give an opportunity to the parties to bring on record all the documents required to be considered by the Court for just decision of the case.
13. The revisional jurisdiction being of supervisory nature can be exercised to correct miscarriage of justice. This discretionary power cannot be exercised in a casual manner. The learned counsel for the petitioner failed to point out how she is going to be prejudiced on being confronted with the statement of account for which she even moved application under Section 65/66 of Indian Evidence Act. Needless to say that under Section 139 NI Act, the statutory presumption is in favour of the holder and it is for the accused to rebut the presumption. Petitioner has not been able to point out any glaring illegality or perversity in the discretion exercised by learned Addl. Sessions Judge which tantamount to flagrant miscarriage of justice.
14. I find that the order of learned Addl. Sessions Judge, Incharge South-West District, Dwarka does not suffer from any perversity or defect of procedure or manifest illegality of such nature as would result in miscarriage of justice.
15. In view of the above, this revision petition fails and accordingly dismissed.
16. All pending applications are also dismissed.
PRATIBHA RANI, J February 19, 2013/'st' Crl.Rev.P.446/2011 Page 7 of 7