Delhi District Court
Sh. Raja Ram vs Sh. Pawan Kumar Verma on 1 September, 2022
IN THE COURT OF MR. SANJAY KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE :
WEST DISTRICT TIS HAZARI COURTS : DELHI
Criminal Revision No. 109/2022
CNR No. DLWT01-004208-2022
In re:
Sh. Raja Ram
S/o Sh. Krishan Lal
R/o H. No. 302, Pocket C-1
Sector-11, Rohini, Delhi-110085
...... Petitioner/revisionist
Versus
Sh. Pawan Kumar Verma
S/o Om Prakash Verma
Sole Proprietor of M/s Fain Travels
Off/Add WZ-284, Gali No.10
Lajwanti Garden
New Delhi-110046
...... Respondents
Date of Institution : 17.05.2022
Date of hearing arguments : 18.08.2022
Date of order : 01.09.2022
Appearances:
Sh. Sunil Dahiya, counsel for petitioner/revisionist
Sh. Rahat Bansal, counsel for respondent.
ORDER
1. The present Criminal Revision is filed by the revisionist under Section 397 r/w 405 Cr.P.C against the impugned order dated 30.03.2022 passed by the court of Ld. MM (NI Act) thereby the interrogation report dated 08.10.2018 of the respondent has not been taken on record in a case no.6498/17 titled as "Pawan Kumar Verma vs Raja Ram". In brief the facts are that as alleged in the complaint by the respondent that the respondent / complainant is sole proprietor of 1 M/s Fain Travels at the above said address. It is stated that complainant had good friendly relation with the petitioner/revisionist and on the request of the petitioner he gave friendly loan of Rs.3,00,000/- in the month of February 2016 and the same was returned on 12.09.2016.
2. It is stated that on 16.09.2016 the petitioner and his son Vipin along with his wife again approached the respondent and told him that the petitioner is in urgent need of money and requested for a loan of Rs.8,00,000/-. It is stated that after considering the relation with the petitioner and his family members, the respondent gave a sum of Rs.8,00,000/- as a friendly loan from his firm and executed a loan agreement on 16.09.2016 and also handed over the cheque bearing no.000015 dated 15.08.2017 in favour of his proprietorship firm M/s Fain Travels.
3. It is stated that after receiving the summon of the case, the petitioner appeared before the court and while framing the notice, the petitioner did not plead guilty and put his defence by stating that he owe no liability towards the respondent / complainant for the said amount of Rs.8 Lacs and also stated on SA that the respondent was / is in the business of sending person to abroad and he sent his son to Australia but because of protection visa, his son was not allowed to get full time job and other facility there.
4. It is stated that during cross-examination, the respondent declined the suggestion of sending petitioner's son to Australia therefore, in order to prove the factum of the respondent business, petitioner produced Sh. Viney Kukreja S/o Sh. Rajinder Kumar in defence evidence as DW-2 who adduced in his examination in chief that he was also sent to Australia by the respondent as he is / was in 2 the business of sending the person abroad and demanded for a sum of Rs.15 Lacs for providing the temporary visa and other facility there, therefore he paid a sum of Rs.13 Lakhs in cash and also took two blank cheques of his mother for securing the remaining amount of Rs.2 Lakhs and also stated that the visa of petitioner's son was sent on email id - [email protected] which had been created by the respondent therefore, DW-2 made a written complaint to cyber crime Hari Nagar who interrogated the respondent in relation to his business and the aforesaid email Id and FIR no. 88/2018 under Section 420 IPC was already registered against the respondent.
5. It is stated that during the cross-examination of DW-2 namely Viney Kukreja on 30.03.2022, the counsel for respondent / complainant put a question that email dated 27.03.2017 which is marked as Mark DW-2/4 was sent by Vipin to him just to frame the complainant in a false case but in reply of question, the witness presented the document dated 08.10.2018 in order to prove that the respondent / complainant is engaged in the business of Visa but the court did not take aforesaid document on record on the objection raised by the counsel for respondent, hence the present revision petition.
6. Revisionist has assailed the impugned order dated 30.03.2022 interalia on the grounds that the impugned order dated 30.03.2022 of the Ld. MM is illegal, improper and incorrect and against the law and the same is also against the facts and evidence on record. It is stated that Ld. MM wrongly allowed the objection of Ld. Counsel for the respondent rather DW-2 has made the complaint in relation to his business and forged email id i.e. [email protected] to cyber crime on which the official of cyber cell interrogated the respondent / complainant and in reply of the questions, he stated that was / is 3 engaged in the business of tourist visa as well as business visa, hence the present interrogation report dated 10.08.2018 is essential document in order to prove the factum of his business.
7. It is stated that impugned order of Ld. MM is arbitrarily, misconceived and the same is based upon conjuncture and surmise. It is stated that it is the petitioner who has to rebut the presumption of Section 139 NI Act which can be rebutted through documentary as well as oral evidence, hence the present interrogation report dated 10.08.2018 is required to rebut the presumption of Section 139 NI Act. It is stated that Ld. MM failed to consider that the relevant documents can be produced to rebut the facts even after closing the evidence. It is stated that impugned order of Ld. MM is not sustainable and against the law, fact and circumstances of the case and is not sustainable and is liable to be set aside by accepting the present revision petition.
8. It is stated that Ld. MM acted contrary to law ignoring the principle of law in determining the questions involving in the present revision petition. It is stated that the revisionist / petitioner has not preferred any other similar petition etc in this matter to the court or any other court of law. It is stated that the impugned order was passed on 30.03.2022 and the present revision has been filed on 02.05.2022 as the question involved in the present revision petition is very serious. Revisionist submits that impugned order dated 30.03.2022 may be set aside.
9. I have heard Sh. Sunil Dahiya, Ld. Counsel for revisionist and Sh.Rahat Bansal, Ld. Counsel for respondent. Ld. Counsel for revisionist / accused Raja Ram assailed the observation where objection was upheld against him. Ld. Counsel for respondent /complainant at the outset raised the issue of maintainability of the 4 present revision petition and submitted that the impugned order / observation dated 30.03.2022 of Ld. Trial Court is purely interlocutory order. Ld. Counsel for respondent submitted that as per Section 397 (2) Cr.P.C revision petition is not maintainable and relied upon the judgment of Hon'ble Supreme Court titled Amar Nath & Ors. Vs State of Haryana & Anr. (1977) 4 SCC 137, Girish Kumar Suneja vs CBI (2017) 14 SCC 809 & Madhu Limaye vs The State of Mahashtra, (1977) 4SCC 551. Ld. Counsel for respondent / complainant pointed out that on 07.05.2022 before Ld. Trial Court, revisionist/ accused filed application under Section 311 Cr.P.C for tendering the said documents which were disallowed during the cross of DW-2 Vinay Kukreja. He further submitted that the revisionist has already taken the steps by filing the application under Section 311 Cr.P.C. Therefore, present revision petition is not maintainable.
10. On the other hand, Ld. Counsel for revisionist submitted that present revision is maintainabile and relied upon the judgment of Hon'ble Supreme court titled Madhu Limaye vs The State of Mahashtra, (1977) 4SCC 551 and Girish Kumar Suneja vs CBI (2017) 14 SCC 809.
11. In order to appreciate the respective submissions, let us peruse trial court record. A complaint under Section 138 NI Act filed by respondent / complainant Pawan Kumar against Raja Ram for dishonour of cheque of Rs.8,00,000/-. As per record, on 16.10.2017, after recording of evidence of pre-summoning evidence of complainant, notice was issued to revisionist Raja Ram. Revisionist Raja Ram appeared on 26.07.2018 and admitted to bail. As per order dated 30.10.2018, notice for offence under Section 138 NI Act was framed. Revisionist plead not guilty and claimed trial and his plea of defence also recorded and permission granted to cross examine the 5 complainant and other witnesses. Complainant evidence completed on 14.05.2019 and matter was listed for recording of statement of revisionist Raja Ram. The statement of accused was recorded on 11.07.2019. Opportunity granted to revisionist to lead defence evidence. Affidavit of DW-1 Raja Ram filed and his chief examination was recorded and partly cross examined. However, due to covid-19 pandemic, evidence could not be further recorded. The application of revisionist Raja Ram for calling witnesses Bittoo Kumar and Hemraj was dismissed vide order dated 21.09.2021 and matter was listed for cross-examination of DW-1.
12. DW-1 cross examined and cross-examination of DW-2 started on 23.11.2021. DW-2 was cross examined on 30.03.2022 and matter was listed for final arguments on 07.05.2022. During the cross examination of DW-2 Vinay Kukreja, witness wish to prove the document dated 08.10.2018 pertaining to complainant Pawan Kumar Verma i.e. interrogation report in FIR No.88/2018 dated 08.02.2018 under Section 420 IPC. However, Ld. Trial Court disallowed the objection specifically observed that during cross-examination witness cannot exhibit and prove the documents.
13. It is established on record that the interrogation report during the chief examination of DW-2 neither produced nor relied and suddenly when cross-examination was concluded DW-2 brought on record the documents.
14. Let us peruse the judgments of Hon'ble Apex Court. In the case of Amar nath (supra), Hon'ble Supreme Court observed as under:-
Let us now proceed to interpret the provisions of Section 397 against the historical background of the these facts.
Sub-section (2) of Section 397 of the 1973 Code may be extracted thus 6 The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in Sub Section (2) of Section 397 which bars any revision of such an order by the High Court. The terms "interlocutory order" is a term of well known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order"
in Section 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code.
15. In the case of Madhu Limaye (supra), Hon'ble Supreme Court observed as under:-
As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of the High Court was resorted to in relation to inter-locutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub- section (2), in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, 7 however, it would follow that nothing in the Code, which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code. the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice. The label of the petition filed by an aggrieved 8 party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers.
The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code. Even assuming. although not accepting, that invoking the revisional power of the High Court is impermissible.
16. In the case of Girish Kumar Suneja (supra), Hon'ble Supreme Court observed as under:-
16. While the text of sub-section (1) of Section 397 of the Cr.P.C. appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub-section (2) thereof.
There is a complete prohibition in a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
17. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
18. The concept of an intermediate order first found mention in Amar Nath v. State of Haryana7 in which case the interpretation and impact of Section 397(2) of the Cr.P.C. came up for consideration. This decision is important for two reasons. Firstly it gives the historical reason for the enactment of Section 397(2) of the Cr.P.C. and secondly considering that historical background, it gives a justification for a restrictive meaning to Section 482 of the Cr.P.C.
19. As far as the historical background is concerned, it was pointed out that the Cr.P.C. of 1898 and the 1955 amendment gave wide powers to the High Court to interfere with orders passed in criminal cases by the subordinate courts. These wide powers were restricted by the High Court and this Court, as matter of prudence 9 and not as a matter of law, to an order that suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse.This led to the courts being flooded with cases challenging all kinds of orders and thereby delaying prosecution of a case to the detriment of an accused person.
20. The Statement of Objects and Reasons of the Cr.P.C. state that the Government kept in mind the following for the purposes of enacting the Cr.P.C.:
"3(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community. As regards Section 397(2) of the Cr.P.C. paragraph 5(d) of the Statement of Objects and Reasons mentioned that:
(5) Some of the more important changes proposed to be made with a view to speeding up the disposal of criminal cases are--
(d) the powers of revision against interlocutory orders are being taken away, as it has been found to be one of the main contributing factors in the delay or disposal of criminal cases; In reply to the debate on the subject, it was stated by Shri Ram Niwas Mirdha the concerned Minister that:
It was stated before the Select Committee that a large number of appeals against interlocutory orders are filed with the result that the appeals got delayed considerably. Some of the more notorious cases concern big business persons. So, this new provision was also welcomed by most of the witnesses as well as the Select Committee. . . . This was a well-thought out measure so we do not want to delete it.
As noted in Amar Nath the purpose of introducing Section 397(2) of the Cr.P.C. was to curb delays in the decision of criminal cases and thereby to benefit the 10 accused by giving him or her a fair and expeditious trial. Unfortunately, this legislative intendment is sought to be turned topsy turvy by the appellants.
21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra 8 by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel v. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra, V.C. Shukla v. State through CBI10 and Rajendra Kumar Sitaram Pande v. Uttam11). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.
1123. We may note that in different cases, different expressions are used for the same category of orders sometimes it is called an intermediate order, sometimes a quasi-final order and sometimes it is called an order that is a matter of moment. Our preference is for the expression intermediate order since that brings out the nature of the order more explicitly.
24. The second reason why Amar Nath is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be done indirectly. Therefore, when Section 397(2) of the Cr.P.C. prohibits interference in respect of interlocutory orders, Section 482 of the Cr.P.C. cannot be availed of to achieve the same objective. In other words, since Section 397(2) of the Cr.P.C. prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482 of the Cr.P.C. to set aside an interlocutory order. This is what this Court held:
"3.While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.
17. Now applying the above principles of law in the present case, it is admitted that the interrogation report in FIR No.88/18 U/s. 420 IPC PS Rajouri Garden was not the part of chief examination of DW-2 Vinay Kukreja and it was never relied and suddenly after completion of cross examination, the plea was taken to exhibit and prove the 12 documents. In my opinion, it is purely interlocutory order which is barred under Section 397 (2) Cr.P.C. It is pertinent to mention that revisionist Raja Ram has already taken steps by filing the application under Section 311 Cr.P.C before the Ld. Trial court as per order dated 07.05.2022. In these peculiar circumstances, in my considered opinion, present revision petition is not maintainable.
18. On the basis of above said observation and discussion, I do not find any error or illegality or perversity in the impugned observation dated 30.03.2022 passed by the Ld. Trial Court. Accordingly, the present revision petition is dismissed.
19. Trial Court record along-with copy of this order be sent back to the Ld. Trial Court for information and record. Parties are directed to appear before Ld. Trial Court on 05.09.2022.
20. File of the revision petition be consigned to Record Room.Digitally signed
SANJAY by SANJAY KUMAR KUMAR Date: 2022.09.01 16:05:27 +0530 Announced in the open Court ( SANJAY KUMAR) on 1st September 2022 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi/01.09.2022 13