Delhi District Court
Sanjeev Berry vs M/S Ess Dee Poly Plastics Pvt. Ltd on 26 March, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
DISTRICT & SESSIONS JUDGE: DELHI
CRs No. 8/12 to 19/12
(12 Revision petitions)
Sanjeev Berry,
Prop. Of M/s National Advertising,
2137, Gali No.3,
Chuna Mandi, Pahar Ganj,
New Delhi 110055.
.......Revisionist/Petitioner
Versus
M/s Ess Dee Poly Plastics Pvt. Ltd.
D-284, Saraswati Vihar,
Delhi.
.....Respondent/Accused
Date of institution of revision petitions : 14.02.2012
Date on which final arguments were heard: 19.03.2012
Date of pronouncement of order :26.03.2012.
O R D E R :-
Vide this common order I shall decide 12 revision petitions bearing C.Rs No.8/12 to 19/12 since common question of law and facts are involved in all the revision petitions and all the petitions are between the same parties. 2- Briefly stated the facts giving rise to the filing of present revision petitions are that complainant (respondent herein) had filed a complaint under Section 138 read with Section 142 of (CR No.08/12) (Page 1 of 10) Negotiable Instruments Act, against the accused (revisionist herein) inter-alia on the allegations that complainant company is engaged in the trading of raw material used in the printing press. Accused placed oral order on 23-1-2003 for supply of raw materials to the tune of Rs.8 lakhs alongwith liability of payment of sales tax @ 8%. The complainant company duly supplied the raw materials on 29-1-2003 which was duly received by the accused. There was no objection about quality and quantity of the material supplied to the accused and as such, accused was liable to pay a sum of Rs.8 lakh alongwith 8% sales-tax to the tune of Rs.64,000/-. In discharge of the liability, accused issued Post Dated cheques to the complainant company for a total sum of Rs.8 lakh alongwith cheque of Rs. 48,000/- towards payment of sales tax liability. Accused also paid a sum of Rs.16,000/- in cash towards full and final liability of payment of sales tax. On deposit of cheques, same were dishonoured from the banker of the accused with remarks "insufficient funds". Accused was called upon by virtue of a notice to make payment of the amount covered by the dishonoured cheques within 15 days from the date of receipt of notice. Notice was duly received by the accused. Despite that he failed to make payment. Hence the complaint. 3- After pre-summoning evidence was led by the complainant, vide order dated 1-4-2004 accused was ordered to be summoned. Notice under Section 251 Cr.P.C was duly served upon the accused on 26-9-2006. Thereafter the matter (CR No.08/12) (Page 2 of 10) was fixed for complainant's evidence. Record reveals that on 30-9-2011 opportunity to the accused to cross examine complainant was closed on the ground that he was granted number of opportunities to cross examine the complainant. Statement of revisionist was recorded under Section 311 Cr.P.C read with Section 281 Cr.P.C and matter was adjourned for defence evidence. However, no evidence was led by him and he was granted another opportunity to lead evidence, subject to payment of costs. Thereafter on 12-9-2011 accused moved an application for recalling the complainant for his cross examination. Vide impugned order, the application was dismissed and matter was fixed for defence evidence. This order has been assailed by way of present revision. 4- Notice of the revision petition was issued to the complainant and trial court record was summoned.
5. I have heard Shri N.K.Jain, Advocate for the Revisionist and Shri Dhan Mohan, Advocate for the respondent and have perused the records.
6. It was submitted by Counsel for the revisionist that the revisionist was never supplied with copy of affidavit or relevant documents, with the result that he could not cross examine the complainant. Moreover, earlier counsel were not prosecuting the case vigilantly and therefore, default has occurred. It was submitted that opportunity be granted to the revisionist to cross examine the complainant, failing which great prejudice will be caused to him. He relied upon an order (CR No.08/12) (Page 3 of 10) passed by Shri S.S.Rathi, learned Addl. Sessions Judge in another criminal revision petition filed on the same ground, which was allowed.
7- Per-contra, it was submitted by learned Counsel for respondent that revision itself is not maintainable and for raising this submission, reliance was placed on JT 2009(4) SC 164 Sethuraman Vs. Rajamanickam. Further it was submitted that even otherwise, no case is made out for seeking relief. As such, revision petition is liable to be dismissed. 8- I have given my considerable thoughts to the respective submissions of parties counsel and have gone through the records carefully.
9- Present revision petition has been filed by the revisionist precisely feeling aggrieved by dismissal of the application moved under Section 311 Cr.P.C., vide which he sought an opportunity to recall the complainant for the purpose of cross examination.
10- The question whether revision against such an order is maintainable or not, came up before Hon'ble Supreme Court in Sethuraman (Supra) as relied upon by learned Counsel for the respondent. In that case, criminal complaint was filed for dishonour of cheque. Two applications - one under Section 91 and another under Section 311 Cr.P.C., were moved which were rejected. Revision was filed in the Hon'ble High Court which also failed. When matter came up before Hon'ble Supreme Court, order passed by Hon'ble High Court was set (CR No.08/12) (Page 4 of 10) aside and it was observed that order rejecting application under Section 311 Cr.P.C. was an interlocutory order and as such, revision petition against such an order was barred undr Section 397(2) of Cr.P.C.
11- Ld.Counsel for the appellant tried to differentiate the present case on the ground that application was primarily was an application under Section 145(2) of N.I.Act and not under Section 311 Cr.P.C. This submission has no force, inasmuch as the application itself is under Section 311 Cr.P.C. As per the directions given by Hon'ble High Court in Rajesh Agarwal Vs. State and another (Cr.M.C.No.1996/2010 - decided on 28-7-2010), when the complaint is filed under Section 138 N.I.Act, following procedure has to be followed :-
Step 1: On the day complaint is present, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint and documents and if commission of offence is made out, take cognizance and direct issuance of summons of accused, against whom case is made out.
Steps II: If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 CrPC and enter his plea of defence and fixed the case for defence evidence, unless an application is made by an accused under Section (CR No.08/12) (Page 5 of 10) 145(2) of N.I. Act for recalling a witness for cross- examination on plea of defence.
Step III: If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross-examination of defence witnesses by complainant.
Step IV: To hear arguments of both sides.
Step V: To pass order/judgment
In view of the aforesaid directions, when notice under Section 251 Cr.P.C. was served upon the revisionist, at that time it was incumbent upon him to move an application under Section 145(2) of NI Act for calling the witness for cross examination.
However, that was not done. It seems that since complaint itself was filed in the year 2004, therefore this procedure at that time was not being followed. Even if that is so, record reveals that number of opportunities were taken by the revisionist but he failed to cross examine the complainant and therefore on 30-9-2011 opportunity to cross examine the complainant was closed. Thereafter application under Section 311 Cr.P.C was moved for recalling the complainant for cross examination on the grounds that earlier counsel for the accused was not regularly appearing in the matter. As such, another counsel was engaged. Other counsel was not having the case file and as such he could not cross examine the witness. As (CR No.08/12) (Page 6 of 10) such, opportunity was sought to recall the complainant for cross examination. This application is under Section 311 Cr.P.C. and it can not be said that it was also under Section 145(2) of N.I.Act, inasmuch as in order to attract provisions of Section 145(2) of N.I.Act, it was for the accused to show as to why he wants to recall the complainant and on what points the witness was to be cross examined. The entire application is conspicuously silent as to on what points the revisionist wants to cross examine the complainant. In Rajesh Aggarwal (supra), it was observed by Hon'ble High Court that :-
"One must not forget that offence under Section 138 N.I. Act is not of the kind of offence as in IPC where State prosecutes a person for offence against society. The offence under Section 138 N.I.Act is an offence in the personal nature of the complainant and it is an offence made under N.I. Act so that the trust in commercial transactions is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is not to face trial under section 138 N.I. Act, he alone has to take the plea of defence and burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the Court and then proving this defence is on the accused. I, therefore, consider that the proper procedure to be followed by MM is that soon after summoning, the accused must be asked to disclose his defence and his plea should be recorded. Where an accused takes no defence and simply says " I am (CR No.08/12) (Page 7 of 10) innocent", there is no reason for the MM to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial Court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. In a summary trial, a complainant or his witness cannot be recalled in the Court for cross-examination only for the sake of pleasure. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc. he can be cross-examined only if the accused makes an application to the Court as to on what point he wants to cross-examine the witness (es) and then only the Court shall recall the witness by recording reasons thereto."
12- In view of the aforesaid observations, coupled with the fact that application under Section 311 CrPC is completely silent as to on what points, the revisionist wanted to cross- examine the complainant, the application cannot be treated as an application under Section 145(2) CrPC . It was an application under Section 311 CrPC simplicitor. That being so, in view of the authority relied upon by ld. Counsel for the respondent, revision itself is not maintainable. 13- Even otherwise, for the first time in the grounds of appeal, the revisionist has taken a plea that he was never supplied with copy of the documents, with the result that he could not cross-examine the complainant or witness. The record reveals that at the relevant time, no such plea was taken. It seems that with the change of counsel , revisionist has been (CR No.08/12) (Page 8 of 10) taking different stands. Record also reveals that accused was interested in delaying the proceedings and he remained absent on many occasions and that is why NBWs were ordered to be issued against him on 27-5-2006, again on 26-2-2009, further on 3-3-2011. Moreover, after dismissal of the application on 22.12.2011 , another application was moved on 15.02.2012 before the trial Court for recalling the order dated 22.12.2011 and for affording an opportunity for cross-examination of the complainant. This application was dismissed on the same day. Revisionist cannot be allowed to adopt two forums for seeking the same relief inasmuch as whereas against the impugned order dated 22.12.2011 , he moved the present revision petition and also moved an application before ld. MM for recalling the order dated 22.12.2011 and for affording an opportunity to cross-examine the complainant.
14- Looking from any angle, neither the revision petition has any merit nor same is legally maintainable.
15- Ld. Counsel for the appellant has relied upon the order of ld. Addl. Sessions Judge in another revision filed by the revisionist , which was allowed. It was admitted during the course of arguments that the order passed by the Court of concurrent jurisdiction does not have a binding force and is of persuasive nature. For the reasons stated above, I prefer to take a different view in the matter.
16- In view of the discussion made above, the present revision petitions are dismissed.
(CR No.08/12) (Page 9 of 10) 17- Let a copy of this order be sent to the Court concerned, while returning the records. A copy of this order be placed in the files of revision petition bearing Nos.9/12 to 19/12.
Revision files be consigned to record room.
Announced in open court ( SUNITA GUPTA ) on 26.03.2012. District & Sessions Judge:Delhi (CR No.08/12) (Page 10 of 10)