Delhi District Court
Isac Samuel vs State on 16 March, 2018
ISAC Samuel V. The State & Anr.
CR No: 440512/2016
IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE
(PC ACT) CBI-I DWARKA COURTS; NEW DELHI
In the matter of:
ISAC SAMUEL
R/o RZ-A-22
Second Floor
Gali No. 3, Sitapuri,
New Delhi- 110045.
......... Revisionist
VERSUS
1. State
2. P.A. Joseph
Proprietor of M/s Maggie Prints,
At-A-1/12, Chanakya Place
Part-1, Street No. 10,
C-1, Janak Puri,
New Delhi-110059.
........Respondents
CR No. 440512/2016
Date of Institution 29.09.2016
Reserved for orders on 07.03.2018
Judgment announced on 16.03.2018
JUDGMENT
1. This is a revision petition under Sections 397/398/399 of Cr.P.C. against the impugned order dated 08.08.2016 passed by Ld. MM-01(NI Act) West, Delhi in CR No: 440512/16 Page 1 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 case under Section 138 NI Act titled as ' P.A. Joseph Vs. ISAC Samuel' whereby Ld. Trial Court has been pleased to dismiss the application dated 18.03.2016 of accused (revisionist herein) for sending for expert opinion the cheque Ex. CW1/1 alongwith specimen handwriting and receipt Ex.CW1/6 for ascertaining the age of erasing of the digit mentioned as 08 in the date i.e. 23.04.08 in Ex.CW1/6.
2. Briefly stated facts relevant for disposal of the revision petition are as under:
3. The revision petition arises out of complaint case under Section 138 NI Act, titled as ' P.A. Joseph Vs. ISAC Samuel' filed by the complainant( respondent No. 2 herein) stating therein that he had friendly relations with the accused ( revisionist herein) and the accused took a loan of Rs. 7 lacs from the complainant for a period of one year. In order to discharge his liability, the accused issued a cheuqe no. 684469 dated 29.09.2014 for Rs. 7 lacs drawn on Federal Bank Ltd, Dwarka, New Delhi. The complainant presented the said cheque with his banker for encashment but the cheque was returned dishonoured vide memo dated 04.10.2014 with remarks "funds insufficient". The complainant issued a legal notice dated 21.10.2014 to the accused but accused failed to discharge his liability. Thereafter the complainant filed the aforesaid complaint case under Section 138 of Negotiable CR No: 440512/16 Page 2 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 Instrument Act against the accused(revisionist herein).
4. In the pre summoning evidence, the complainant examined himself as CW1 and Pre summoning evidence was closed on 04.02.2015. The accused was summoned and notice under Section 251 Cr.P.C. was framed against the accused on 04.04.2015. In the notice under Section 251 Cr.P.C., the accused was questioned as under:
Q. Do you plead guilty or claim trial? Ans. I plead not guilty and claim trial. Q. What do you wish to say in your defence? Ans. I only signed the cheque in question but did not fill its particulars. Complainant had given a sum of Rs. One lac to another person also named Joseph P.A. I had stood surety for the said Joseph P.A. and had given the present cheque as security to the complainant. The said other Joseph P.A has already returned the above loan of Rs. One lac. Therefore, I do not have any liability towards the complainant. I received the legal demand notice.
5. After framing of notice under Section 251 Cr.P.C. the case was fixed for CE and the complainant examined himself as CW1 and CE was closed on 05.01.2016. The statement of accused under Section 313 Cr.P.C r/w 281 Cr.P.C. was recorded on 18.03.2016 in which accused denied allegations against him.
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CR No: 440512/2016
6. Accused filed an application dated 18.03.2016 for sending for expert opinion the cheque Ex.CW1/1 and receipt Ex.CW1/6 for ascertaining the age of erasing of the digit mentioned as 08 in the date i.e. 23.04.08 in Ex.CW1/6.
7. Vide the impugned order dated 08.08.2016 Ld. Trial Court was pleased to dismiss the application dated 18.03.2016 of the accused ( revisionist herein).
8. Aggrieved by the impugned order dated 08.08.2016, the revisionist has filed the revision petition stating therein that the complainant was cross examined in the Trial Court and it has come on record that cheque Ex.CW1/1 is filled in the name of "Maggi Prints" and in the cross examination, the complainant has stated that the accused has filled all the particulars in the cheque and the accused has filled the cheque in question in his presence. It is stated in the revision petition that respondent no. 2 in the reply filed to the application dated 18.03.2016 has made denial of his statement which was recorded at the time of evidence and has also stated in the reply that there is no justifiable circumstances shown in the application, hence it is not necessary to bring the truth to the light. It is stated that in the reply the respondent has stated that expert opinion is required to ascertain the age of the vague and false allegation. It is stated that Ld. Trial Court failed to appreciate any of the CR No: 440512/16 Page 4 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 points as raised by the revisionist in its proper perspective and passed the impugned order in a mechanical manner.
9. I have heard Ld. Counsel for the parties and gone through the records.
10. The contention of the Ld. Counsel for the revisionist is that the application dated 18.03.2016 has been dismissed in a mechanical manner and the Ld. Trial Court has not appreciated the cross-examination of the complainant while passing the impugned order dated 08.08.2016. Ld. Counsel for the revisionist has contended that reply to the application dated 18.08.2016 has also been filed by the respondent in a mechanical manner and in the reply, the respondent has given vague answers.
11. Ld. Counsel for the respondent has contended that the revision petition is not maintainable as the impugned order is an interlocutory order. Ld. Counsel for the respondent has also contended that in view of the Section 20 of the Negotiable Instrument Act, there is no force in the contention of the revisionist that cheque and receipt in question are required to be sent for expert opinion as in his reply to the notice under section 251 Cr.P.C., the respondent has admitted that he had signed the cheque in question and in the circumstances, it is not material that who has filled the particulars.
12. Ld. Counsel for the revisionist has stated in rebuttal that the revision petition is maintainable and has CR No: 440512/16 Page 5 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 placed reliance on the decision in Kalyani Baskar v. M.S. Sampoornam (2007) 2 SCC 258.
13. In Sethuraman Vs. Rajamanickam, Criminal Appeal No. 486-487 of 2009, wherein Hon'ble Supreme Court was pleased to hold:
2. In these appeals, the common order passed by the Learned Single Judge of the Madras High Court in three Criminal Revisions, is in challenge. By the instant order, the Learned Single Judge set aside the three orders passed by the Trial Court dated 26.07.2004 in Crl.M.P. No. 3057 of 2004 in C.C. No. 216 of 2003 and dated 1.4.2004 in Crl.M.P. Nos. 4184 and 4185 of 2004 in C.C. No. 215 of 2003, and allowed those Crl.M.Ps. Shortly stated, the appellant herein had filed a criminal complainant under Section 200 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short), complaining therein that a cheque signed by the respondent and given for returning the amount of Rs.2Lakhs, which was a loan, was bounced and inspite of the notice given thereafter, the accused (respondent herein) had failed to return the money. A Trial ensued on the basis of this complaint and the complainant (appellant herein) was examined as a first witness for the prosecution on 24.8.2004. He CR No: 440512/16 Page 6 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 was cross-examined also. On 20.09.2004, the respondent herein filed applications under Section 91 Cr.P.C. and Section 311 Cr.P.C., seeking directions to produce the Bank Pass Books, Income Tax Accounts and the L.D.S. deposit receipts of the appellant, as also for recalling him for cross-examination. This was objected to by a Reply dated 24.9.2004. The Court passed an order on 1.10.2004, rejecting the applications made by the respondent/accused. The respondent/accused filed Criminal Revisions before the High Court under Section 397 Cr.P.C. and the High Court, by the impugned common order, proceeded to allow the same. It is this order, which has fallen for consideration before us in these appeals.
4. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such CR No: 440512/16 Page 7 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.
14. Section 397(2) of The Code of Criminal Procedure, 1973 reads as under:
Section 397: Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and CR No: 440512/16 Page 8 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 as to the regularity of any proceedings of such inferior Court, any may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section
398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) XXXXXXXXXXX
15. In Amar Nath and others v. State of Haryana and others, AIR 1977 Supreme Court 2185, Hon'ble Supreme Court was pleased to hold:
6. Let us now proceed to interpret the provisions of S. 397 against the historical background of these facts. Sub-section (2) of S. 397 of the 1973 Code may be extracted thus:
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CR No: 440512/2016 "The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
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-s (2) of S. 397 which bars any revision of such an order by the High Court. The term "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 S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely CR No: 440512/16 Page 10 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 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 the order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.
16. In Madhu Limaye v. State of Maharashtra AIR 1978 Supreme Court 47, Hon'ble Supreme Court CR No: 440512/16 Page 11 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 was pleased to hold:
10. As pointed out in Amar Nath's case (AIR 1977 SC 2185) (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 interlocutory 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.
17. In V. C. Shukla v. State through C.B.I., AIR 1980 Supreme Court 962, Hon'ble Supreme Court was pleased to hold:
'It will be important to note that the words 'interlocutory order' used in this sub-section relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding. The object seems to be to cut-down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it has got a wide and diverse area of jurisdiction inasmuch as it regulates the procedure of trial not only of the CR No: 440512/16 Page 12 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 large number of offences contained in the Indian Penal Code but also in other Acts and statutes which apply the Code of Criminal Procedure or which are statutes in pari materia the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. Fortunately, however, there are a few decisions which have interpreted the expression 'interlocutory order' as appearing in S. 397 (2) of the Code.
18. In Neelam Mahajan & Anr. Vs. State & Ors., MANU/DE/0871/2016, Hon'ble High Court of Delhi has given guidance for making a distinction between interlocutory order and final order. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra) , Hon'ble High Court has referred to decision in V. C. Shukla v. State through C.B.I., ( Supra) and has been pleased to observe:
17. In V.C. Shukla v. State through CBI, 1999 SCC ( Cri) 393, the following propositions were laid:
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory CR No: 440512/16 Page 13 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 order;
(2)that the concept of interlocutory order has to be explained, in contradistinction to a final oder. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an oder passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the CR No: 440512/16 Page 14 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order, framing charges, the Act works serious injustice to the accused.
19. In view of aforesaid decision of Hon'ble Supreme Court, the decision in Kalyani Baskar v. M.S. Sampoornam(supra) is of no help to the revisionist as the impugned order passed by the Judicial Magistrate was challenged before the Hon'ble High Court and question of applicability of section 397(2) Cr.P.C. was not raised before Hon'ble Supreme Court.
20. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra), Hon'ble High Court has been pleased to observe:
18. Applying these tests to the impugned order, this Court finds that the order permitting the re-
examination of the petitioners is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. Furthermore, it is impossible to spell out the concept of an interlocutory order unless it is CR No: 440512/16 Page 15 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 understood in contradistinction to or in contrast with a final order.
21. In Varun Aggarwal Vs. State of NCT of Delhi & Anr. , Crl. M.C. No. 2424/2017, Hon'ble High Court has been pleased to hold:
1. By way of the present petition filed under Section 482 of The Code of Criminal Procedure, 1973 (hereinafter referred 'Cr.P.C.') the petitioner seeks setting aside of order dated 19.12.2016 in Criminal Complaint No. 4998501/2016, passed by the Metropolitan Magistrate (hereinafter referred as 'MM'), Dwarka Courts, and also order dated 13.04.2017 passed by the Additional Session Judge (hereinafter referred 'ASJ') in Criminal Revision No. 120/2017.
2. The brief facts of the present case are that the complainant lodged a complaint against the petitioner, wherein it was alleged that the petitioner had taken loan from the complainant at the interest rate of 12% p.a, which is to be repaid by him within a period of one year.
On the expiry of the aforesaid period, he approached the petitioner for return of money in lieu of which the petitioner issued a post dated cheque bearing no. 858476 dated 25.05.2012. On 26.05.2012, when the cheque was presented for encashment in the bank, the same was dishonored. Therefore, the complainant lodged the complaint under Section 138 Negotiable Instrument Act,1881 against the petitioner. During trial, the concerned court allowed the plea of the CR No: 440512/16 Page 16 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 petitioner/accused vide order dated 12.05.2016, to place on record the FSL report of the alleged conversation with the complainant along with the transcript. However, vide order dated 19.12.2016, the petitioner could not file the Forensic report, on account of which the court closed the right of the petitioner for the examination of the Forensic Expert. The said order was challenged by the petitioner through a Criminal Revision No. 120/2017, before the Special Judge, Dwarka, who dismissed the same on the ground of maintainability of the said revision under Section 397(2). Hence, the present petition. Xxxxxxxxxx xxxxxxxxxx
8. The petitioner, then, filed a Criminal Revision No. 120/2017 against the order dated 19.12.2016, 09.01.2017 and 18.01.2017, and the order of the said Revision court was pronounced on 13.04.2016 wherein the same was rejected by the learned ASJ on the pretext that: "In view of the decision in Neelam Mahajan & anr. vs state & Ors. , Manu/DE/0871/2016, there is no force in the contention of revisionist that impugned order is not an interlocutory order merely because it disposes of an important aspect of the course of proceedings. Consequently, the revision petition thereby praying for allowing the revisionist to bring on record the Forensic Expert Report and for examining the expert as a defence witness is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed."
xxxxxxxxxxxx
10. As far as order dated 13.04.2017 passed by the CR No: 440512/16 Page 17 of 18 D.O.J. 16.03.2018 ISAC Samuel V. The State & Anr.
CR No: 440512/2016 learned ASJ is concerned, it is rightly viewed by the said court that order dated 19.12.2016, 09.01.2017 and 18.01.2017 setting aside the revision petition being interlocutory in nature and the same cannot be challenged in a revision petition and is liable to be set aside as per the settled proposition of law in that regard.
22. In view of the decisions in Neelam Mahajan & Anr. Vs. State & Ors. (Supra) and Varun Aggarwal Vs. State of NCT of Delhi & Anr. ( supra), there is no force in the contention of revisionist is that impugned order is not an interlocutory order merely because it disposes of an important aspect of the course of proceeding. Consequently, the revision petition thereby praying for sending the cheque Ex. CW1/1 along with specimen handwriting and receipt Ex.CW1/6 for ascertaining the age of erasing of the digit mentioned as 08 in the date i.e. 23.04.08 in Ex.CW1/6 for expert opinion is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed.
23. Revision File be consigned to record room.
24. A copy of this order be sent to Trial Court for information.
Announced in the open (HARISH DUDANI) Court on 16.03.2018 Special Judge,( PC Act) CBI-I Dwarka Courts, New Delhi.
HARISH Digitally signed by HARISH
DUDANI
DUDANI Date: 2018.03.16 15:58:20
+0530
CR No: 440512/16 Page 18 of 18 D.O.J. 16.03.2018