Delhi District Court
Ms. Sarita Kashyap vs Mr. Parvez Ali on 19 September, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 468/2022
CNR No.: DLCT01-012339-2022
Ms. Sarita Kashyap
W/o Mr. Lalit Kashyap
through SPA Mr. Lalit Kashyap
R/o F-4, Gali No. 5
West Chander Nagar, Delhi.
..... Petitioner
VERSUS
Mr. Parvez Ali
S/o Mr. Liyakat Ali
R/o H. No. A-14/10392,
West Gorakh Park, Shahdara,
Delhi-110032
..... Respondent
Date of Institution : 31.08.2022
Date of Arguments : 02.09.2022
Date of Judgment : 19.09.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (In short 'Cr.P.C.') is directed against order dated 30.05.2022 (In short 'the impugned order') arising from complaint case under Section 138 of 'The Negotiable Instruments Act, 1881' (In short 'NI Act') vide CC No. 541817/2016 titled as 'Sarita Kashyap vs. Parvez Ali' whereby Ld. MM (NI Act) - 02, Central, Tis Hazari Courts, Delhi (In short 'the trial Court') allowed application under Section 311 Cr.P.C. for recalling the complainant for cross- examination.
Crl. Revision No. 468/2022 Sarita Kashyap vs. Parvez Ali Page No. 1 of 11 FACTS:
2. The petitioner instituted a complaint under Section 138 NI Act against the respondent on averments that she had friendly relation with the respondent. In the month of January, 2016, the respondent demanded an amount of Rs.
27,98,400/- from the petitioner. Thereafter, the petitioner advanced a loan of Rs. 27,98,400/- to the respondent. In discharge of the said liability, the respondent issued a cheque bearing No. 431958 dated 30.06.2016 in the sum of Rs. 22,78,100/- drawn on 'Andhra Bank, Vishwas Nagar, Delhi- 110032' (Hereinafter referred to as 'the said cheque') in favour of the petitioner. On presentation, the said cheque was returned unpaid with remark 'FUNDS INSUFFICIENT' vide memo dated 10.08.2016. The petitioner sent a demand notice dated 06.09.2016, vide speed post and courier, on 08.09.2016. However, the respondent failed to make the payment of the cheque amount within stipulated period and therefore, he filed the aforesaid complaint under section 138 NI Act.
3. The trial Court, vide order dated 05.08.2017, taken cognizance of offence under Section 138 NI Act and summoned the respondent.
4. The trial Court, vide order dated 15.09.2018, explained substance of accusations to the respondent, as required under Section 251 Cr.P.C.
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5. The reply of the respondent to substance of accusations, as explained to him under Section 251 Cr.P.C., is as under:
"Q. Do you plead guilty or have any defence to make? A. I do not plead guilty and claim trial. My plea of defence is as under:
I admit my signature on cheque in question. I did not receive any legal notice. I admit my liability to the tune of amount as reflected in cheque in question. I also admit that cheque in question was issued in discharge of my legal liability. I am ready to pay the amount provided that a key of a flat with lift alongwith parking spot is handed over to me.
Q. Do you want to lead DE?
A. Yes. "
6. Vide order dated 15.09.2018, the complaint was referred to Delhi Mediation Centre, Tis Hazari Courts, Delhi.
7. On 20.12.2018, the respondent amicably settled the case with the petitioner vide mediation settlement dated 20.12.2018. The respondent agreed to pay an amount of Rs. 22,78,100/- as full and final settlement in two instalments of Rs. 3,00,000/- and Rs. 19,78,100/- payable on 01.02.2019 and 01.07.2019 respectively. Clause 4 and 5 of the said settlement are as under:
"4. At the time of receipt of the above settled amount, the complainant / attorney of complainant will withdraw the present complaint U/s.138 NI Act and shall hand over keys of the property flat No. A-31/155, Third Floor with roof rights (inclusive of right over common area i.e. parking space, lift etc.) Gali No. 6, Mauzpur, Shahdara, Delhi-110053 to the respondent and the parties will be left with no claim against each other in respect of present matter in dispute.
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5. It is made clear that the above noted property does not have electricity and water connection at present, however, the complainant has agreed to clear up to date house tax / charges dues of the aforementioned property and shall handover the copy of receipt on 01.07.2019. It is further agreed that the complainant shall be left with no right, title or interest in the above mentioned property after handing over the keys of the afore-said property. "
8. Pursuant to the said mediation settlement, the respondent paid an amount of Rs. 3,00,000/-, vide cash, before the trial Court on 01.02.2019. However, the respondent failed to make payment of second instalment. The petitioner, in terms of Clause 3 of Mediation Settlement, exercised liberty to proceed with the case, vide application filed on 15.07.2019.
9. The trial Court, vide order dated 27.01.2020, closed right of the respondent to cross-examine the petitioner and listed the case for his examination under Section 313 Cr.P.C., as under:
"27.01.2020 Present: Complainant in person with Ld. Counsel.
Accused in person with Ld. Counsel.
Complainant submits that the matter could not be settled and matter may be proceeded on merits. Perusal of the record shows that the notice U/s 251 Cr. P.C. was framed against accused on 15.09.2018 and since there was no plausible defence taken by the accused, there is no need for cross-examination of the complainant as per judgment of Hon'ble High Court of Delhi titled as Rajesh Aggarwal Vs. State, Crl. M.C. No. 1996 of 2010, accordingly, matter be put up for statement of accused.
Put up for SA U/s 313 Cr. P.C. on 19.03.2020."
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10. On 30.11.2021, the respondent filed an application under Section 145 (2) NI Act read with Section 311 Cr.P.C. seeking permission to cross-examine the petitioner, on the grounds as under:
"a. The respondent had issued the said cheque as security to the petitioner at the time of written agreement regarding the flat. However, the petitioner did not hand over the flat and key thereof and failed to fulfil condition pertaining to lift, parking issue etc.; b. In terms of Mediation Settlement, the respondent paid an amount of Rs. 3,00,000/- to the petitioner. However, the petitioner has not handed over possession of the flat and hit key and not fulfilled term and condition regarding parking and lift; c. The petitioner failed to comply with term and condition of Mediation Settlement and unauthorizedly covered parking space and built up a flat thereupon and d. The petitioner has sold unauthorizedly covered portion on higher market risk.
11. The petitioner, in the reply, stated that the respondent was seeking review of order dated 27.01.2020. She contended that the case does not relate to any written agreement regarding sale and purchase of property. She contended that the respondent admitted his liability in respect of the said cheque and he does not deserve any opportunity of cross-examination. She contended that the respondent failed to make payment of second instalment in terms of Mediation Settlement. She contended that the respondent is seeking enforcement of Mediation Settlement which is not permissible by law.
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12. The trial Court, vide impugned order, allowed the said application under Section 145 (2) NI Act read with Section 311 Cr.P.C., as under:
"In the present case, as per the complaint, the accused had taken a friendly loan of Rs.27,98,400/- from the complainant in 2016. The plea of defence of the accused was recorded at the time when notice of accusation was framed upon him. In his plea of defence, he had admitted his liability on the condition that the key of flat was provided to him. He had neither admitted the case of the complainant nor his liability in an unconditional manner. Even thereafter, when the parties had settled the present case, the settlement agreement contained terms qua handing over keys of the flat to the accused upon payment of settlement amount. Now the settlement has fallen through with both parties alleging non-compliance of terms on the other. Be that as it may, the matter now has to proceed on merits. Considering the facts and circumstances of the case, in the considered opinion of the Court, the accused should get an opportunity to cross-examine the complainant and establish his defence qua issuance of the cheque in question. Considering the different stands of the parties, it is imperative that the accused be given an opportunity to rebut the presumption of legally enforceable debt qua the cheque in question.
In light of the above discussion, the present application under Section 311 Cr. P.C., filed on behalf of the accused stands allowed subject to cost of Rs.1000/-, to be paid to the complainant. The present application stands disposed of accordingly."
13. Feeling aggrieved and dissatisfied with the impugned order, the petitioner filed this criminal revision petition.
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14. Ld. Counsel for the petitioner contended that the trial Court did not apply its judicial mind. He contended that the trial Court did not consider facts and circumstances of the case. He contended that the trial Court reviewed its order dated 27.01.2020 whereby it had categorically observed that there was no plausible defence to permit the respondent to cross- examine the petitioner. He contended that the respondent has not taken any plea of defence. He contended that the respondent admitted his liability in response to substance of accusations explained to him under Section 251 Cr.P.C. He contended that the respondent has no right to cross-examine the complainant in view of admission of liability. He contended that the respondent also admitted his liability before Delhi Mediation Centre vide Mediation Settlement dated 20.12.2018 and the respondent paid an amount of Rs. 3,00,000/- as first instalment out of two instalments as agreed by him. He contended that the impugned order deserves to be set aside.
15. As regards contention that the impugned order amounted to review of order dated 27.01.2020, it can be stated that the said order was not passed on an application under Section 145 (2) NI Act. Therefore, the impugned order would not amount to review of order dated 27.01.2020.
16. As regards contention that the respondent admitted his liability in response to substance of accusations explained to him under Section 251 Cr.P.C., it can be stated that the respondent did not make any admission of any liability.
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17. The respondent in response to substance of accusation, as explained under Section 251 Cr.P.C., admitted his liability subject to delivery of key of the flat alongwith lift and parking area. Moreover, Clause 4 of Mediation Settlement dated 20.12.2018, as reproduced above, would reveal that the complainant had agreed to hand over keys of Flat No. A-31/155, 3rd Floor with roof rights (including right over common area i.e. parking space, lift etc.), Gali No. 6, Mauzpur, Shahdara, Delhi- 110053. Therefore, it cannot be said that the respondent admitted his liability to make payment of the cheque amount. The respondent had agreed to make payment subject to handing over keys of aforesaid flat alongwith roof right, parking space, lift etc.
18. In Ashish Aggarwal Vs. Sushil Kumar, 2020 SCC OnLine Del 1761, Hon'ble High Court of Delhi held, as under :
"6. Section 145 (2) Negotiable Instruments Act, 1881 mandates that once an application by the accused is filed, the Court is obliged to summon the person who has given evidence on affidavit in terms of Section 145 (1) N.I. Act, 1881.
7. In 'Mandvi Cooperative Bank Limited v. Nimesh B. Thakore' reported as (2010) 3 SCC 83, the Supreme Court held as under:
"30. Nevertheless, the submissions made on behalf of the parties must be taken note of and properly dealt with. Mr. Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No. 4760 of 2006 pointed out that sub- section (2) of Section 145 uses both Crl. Revision No. 468/2022 Sarita Kashyap vs. Parvez Ali Page No. 8 of 11 the words, "may" (with reference to the Court) and "shall" (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the Court would be obliged to summon the person giving evidence on affidavit in terms of Section 145 (1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit.
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34. As a matter of fact, section 145 (2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit."
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9. Looking into the mandate of Section 145 (2) NI Act as encapsulated in 'Mandvi Cooperative Bank Limited' (supra) and 'Indian Bank Association' (supra) and the facts and circumferences of this case, I am of the view that the trial Court ought to have allowed the petitioner's application filed under Section 145 (2) N.I. Act"
19. In Siddharth Chandra v. State of N.C.T. & Anr., 2018 SCC OnLine Del 11112, Hon'ble High Court of Delhi held, as under:
"5. The right of the accused to cross-examine the witnesses of the prosecution or the complainant is a valuable right. The said exercise aids and assists the court in reaching the truth of the matter. In the given facts and circumferences where the default was primarily on the part of the defence counsel in making out a proper application under Section 145 (2), the petitioner ought not suffer."
20. Therefore, this Court does not find any jurisdictional error, legal infirmity or material illegality in the impugned order.
21. Accordingly, the criminal revision petition filed by the petitioner is dismissed. A copy of judgment alongwith trial Court record be sent to trial Court. The criminal revision file be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2022.09.19 17:56:05 +0530 Announced in the open Court SANJAY SHARMA-II on this 19th September, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Revision No. 468/2022 Sarita Kashyap vs. Parvez Ali Page No. 10 of 11 Sarita Kashyap vs. Parvez Ali CNR No.: DLCT010123392022 Crl. Revision No. 468/2022 19.09.2022
Proceedings convened through Video Conferencing.
Present : Mr. Rakesh Kumar, Advocate for the petitioner.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The criminal revision file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date:
2022.09.19
17:56:15 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
19.09.2022
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