Delhi District Court
Sri Ram Srirangam vs . Umesh Prasad on 16 December, 2011
Sri Ram Srirangam Vs. Umesh Prasad CC No.6262/11 16.12.2011
Present: Complainant with counsel.
Accused with counsel.
Accused admitted on bail subject to furnishing of bail bond and surety bond to the tune of Rs.2 lacs. The same is furnished. Accepted subject to verification.
Ld. Counsel for the accused submits that they have not received any copy of complaint with the summons.
Against this ld. counsel for the complainant submits that they had enclosed copy of the complaint alongwith summons not only with the regular process but also with the speed post envelope.
Ld. Counsel for the complainant further submits that office of this court does not receive any process fee, if the same is not accompanied with copy of complaint.
It appears that Section-204(3) Cr.P.C. provides that every summons shall be accompanied by a copy of such complaint. It is a matter of presumption of fact that official work has been done in regular course and there is nothing to disbelieve the fact that summons issued was accompanied by a copy of complaint. Therefore the contention of the ld. counsel for the accused is liable to be rejected. I consider that Section-207 does not have any role to play in private complaint cases.
It seems that accused is trying to get adjournment on the ground of so called non supply of copy of complaint.
To avoid an adjournment, ld. counsel for the complainant has supplied copy of complaint and affidavit to the accused.
Accused has been given time to go through the documents and, thereafter, to take notice and disclose defence. However, ld. counsel for the accused submits that accused will not do so since he has no time today to go through the documents.
Deliberate attempt is clear in this respect. Accused somehow or the other is trying to get an adjournment.
It may be noted that prosecution U/s 138 NI Act is a summary trial offence and is based upon documentary evidence. The record is not voluminous and accused can easily take notice and disclose his defence. If we allow such tactics to prevail, very purpose of summary trial procedure would be frustrated for every accused on the first day will claim that he has not received any copy and, therefore, an adjournment be given.
In my considered view, such tactics should not be encouraged.
Hon'ble High Court of Delhi in Rajesh Aggarwal Vs. Stated decided on 28.07.2010 has categorically depricated the practice of wasting the first date in the formalities of bail bonds.
Hon'ble High Court of Delhi in the said case has held as under:
8. The procedure being followed presently by learned MMs under section 138 of N.I. Act does not commensurate with the summary trial provisions of Cr.P.C. and provisions of Negotiable Instrument Act and that is the reason that decisions of cases under section 138 of N.I. Act is taking unnecessary long time and the complaints remain pending for years. The procedure as prescribed under law is that along with complaint under section 138 of N.I. Act, the complainant should file affidavit of his evidence and all necessary documents like dishonour memo, returned cheque, notice of demand and then learned MM should scrutinize the complaint & document & if he finds that the affidavit and the documents disclose dishonour of cheque issued by the accused, issuance of a demand notice by the complainant, nonpayment of the cheque amount by the accused despite notice, cheque return memo of the bank etc. and if the court finds that the complaint was filed within the period of limitation, cognizance is to be taken and notice of appearance of accused should be sent to the accused. In case the accused appears before the court of MM, the Court should ask him as to what was his plea of defence. Normally the first date is wasted by the courts of MM just by taking bail bond of the accused and passing a bail order, while section 251 & 263(g) of Cr. P.C. provide that when the accused appears before MM in a summary trial proceedings, the particulars of the offence, to which he is accused, shall be stated to him & he should be asked whether he pleads guilty or he has any defence to make. This is the mandate of section 143 of N.I. Act, which provides summary trial of offence in terms of Cr. P.C. Under Section 263(g) of Cr.P.C., the court has to record the plea of the accused and his examination. It is thus obvious that in a trial of an offence under section 138 N.I. Act the accused cannot simplicitor say "I plead not guilty" and wants to face trial. Since offence under section 138 of N.I. Act is a document based technical offence, deemed to have been committed because of dishonour of cheque issued by the accused or his company or his firm, the accused must disclose to the Court as to what is his defence on the very first hearing when the accused appears before the Court. If the accused does not appear before the Court of MM on summoning and rather approaches High Court, the High Court has to refuse to entertain him and ask him to appear before the Court of MM as the High Court cannot usurp the powers of MM and entertain a plea of accused why he should not be tried under section 138.
This plea as to why he should not be tried under section 138 is to be raised by the accused before the Court of MM under section 251 & under section 263 (g) of Cr. P.C. Along with his plea he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of N.I. Act to recall the complainant to cross-examine him on his plea of defence. However, only after disclosing his plea of defence he can make an application that the case should not be tried summarily but as a summon trial case. This application must disclose the defence of the accused and the reasons why he wants the case to be tried as a summon trial.
It is clear that if we allow such tactics of the accused to prevail, this would amount to a breach of mandate of the summary trial procedure and the clear direction of the Hon'ble High Court of Delhi. Court can only give an opportunity and cannot compel the accused. However, the adjournment should not be given as a matter of course. Otherwise every accused or for that matter any litigant can frustrate the proceedings.
It appears that only for this purpose, Parliament of India inserted 4 th Proviso to Section-309(2) Cr.P.C. which provides that adjournment shall not be granted at the request of party except where the circumstances are beyond the trial by that party (this Proviso has been notified with effect from 01.11.2010).
However, since the accused is not willing to assist today and is inclined to get an adjournment somehow or the other, the matter has to be adjourned.
Since todays adjournment is solely attributable to the accused, the adjournment cost has to be imposed upon the accused. The law in respect of adjournment and imposition of cost has already been settled by the Hon'ble Superior Courts.
Law on adjournments and imposition of costs:
Law in respect of adjournments has already been settled by the Hon'ble superior courts in State of U.P. v. Shambhu Nath Singh and Ors., [2001] 4 SCC 667 and N.G.Dastance, v. Shrikant S. Shivde and Anr., [2001] 6 SCC 135., Skipper Tower (P) Ltd. v. Skipper Bhawan Flat Buyer's Assn., (2002) 10 SCC 116 , Sobaran Singh vs The State (Govt. of NCT of Delhi), Criminal Appeal No.528 of 1998 decided on 08.11.2006.
Hon'ble Supreme Court in State Of U.P vs Shambhu Nath Singh And Ors, Appeal (crl.) 392 of 2001 decided on 29 March, 2001 has observed and held as under:
"Section 309 of the Code of Criminal Procedure (for short the Code) is the only provision which confers power on the trial court for granting adjournments in criminal proceedings. The conditions laid down by the legislature for granting such adjournments have been clearly incorporated in the section. It reads thus:
309. Power to postpone or adjourn proceedings- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing.
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words as expeditiously as possible have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of witnesses begin. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub-section by using the words as expeditiously as possible, has chosen to make the requirement for the next stage (when examination of witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination shall be continued from day to day until all the witnesses in attendance have been examined. The solitary exception to the said stringent rule is, if the court finds that adjournment beyond the following day to be necessary the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the Court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the second proviso to sub-section (2) has imposed another condition, provided further that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing.
(emphasis supplied) Thus, the legal position is that once examination of witnesses started the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are special reasons, which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with immunity. Even when witnesses are present cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned.
We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a special reason for bypassing the mandate of Section 309 of the Code. If any court finds that the day to day examination of witnesses mandated by the legislature cannot be complied with due to the non co-operation of accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case.) "
Division bench of Hon'ble High Court of Delhi in Sobaran Singh vs The State (Govt. of NCT of Delhi), Criminal Appeal No.528 of 1998 decided on 08.11.2006 has observed as under:
"......We only wish to point out, for the benefit of the Trial Judges, Section 309(1) and the second proviso to Section 309(2) of the Criminal Procedure Code which read as follows: 309. Power to postpone or adjourn proceedings.(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
23. In this context, the Supreme Court has said in State of Uttar Pradesh v. Shambhu Nath Singh, (2001) 4 SCC 667, We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. In the same decision it is also said, Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are special reasons, which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court. This view has been followed in Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334. In the case at hand, we find that the first adjournment was granted because the Appellant had some trouble in his throat! This can hardly be a ground for an adjournment, more particularly when the Appellant was on bail. We would request the Trial Judges to keep the statutory mandate in mind and hope that on the administrative side, the High Court looks into these issues affecting the effective administration of justice."
Law on imposition of costs for adjournment Hon'ble Supreme Court in a seven judges bench decision in P. Ramachandra Rao vs State Of Karnataka 2002 Cr. LJ 2547 has observed that:
"Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanisms available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts....."
Hon'ble High Court of Delhi in K. Vijayan vs Central Bureau Of Investigation 94 (2001) DLT 831 has observed that:
"9. Petitioner is an Ex-Superintendent of Police, CBI This is his 5th round of litigation in this court. The alleged offence was committed on 4th October,1991 and the matter is still at the charge stage. The trial has been delayed on account of the repeated petitioners filed by the petitioner in this court which tendency ought to be deprecated. Expeditious trial is the core of criminal jurisprudence, the delay defats justice. Section 309 explanation 2 provides that in appropriate cases, costs can be imposed on the prosecution or the accused for adjournment or postponement of the hearings. Sections 357 and 359 empower the Court to order payment of compensation for defraying the expenses incurred by the prosecution etc. No doubt, there is no specific provisions for imposition of costs while exercising revisional or inherent jurisdiction, nonetheless, the principles contained in these Sections can be applied in suitable cases to secure the ends of justice and to prevent abuse of the process of the court."
Hon'ble High Court of Delhi in Anuj Sharma vs State CRL. M.C. No. 1791/2011 decided on 27.05.2011 has held that:
"7. It is on 15.04.2011 that the present petitioner did not appear once again, and consequently, the Court was constrained to take an adverse view in the matter and observed that the present petitioner was trying to indulge in dilatory tactics and the minimum which was expected from him was that even though he may not be in a position to come, he ought to have disclosed his defence and adduce his evidence. The learned Magistrate on account of three consecutive dates going waste drew the inference and rightly so, that the present petitioner was indulging in dilatory tactics and delaying the disposal of the case. This was not approved of by the learned Magistrate, and accordingly, it chose to impose a cost of Rs. 10,000/- in each case on the petitioner in terms of Section 309 Explanation II of the Negotiable Instrument Act while granting yet another exemption to the petitioner and adjourned the matter to 18.04.2011.
8. It is against this backdrop that the order dated 15.04.2011 has been assailed before this Court. I have dealt with the factual matrix in which the cost has been imposed by the learned Magistrate. I, prima facie, do not find anything improper, illegal or unreasonable in the impugned order being passed by the learned Magistrate in dealing with the recalcitrant accused who is not putting his appearance despite opportunities having been given and filing repeated application seeking exemption only with a view to delay the disposal of the trial.
9. Section 482 Cr.P.C. is an extraordinary power conferred on the High Court, which has to be exercised only with a view to prevent the abuse of process of law or to secure the ends of justice. I fail to comprehend that in a contingency like this where there is an abuse of processes of law and hence what order other than the one which was passed by the leaned Magistrate could have been passed for securing the ends of justice."
Consequently, an adjournment cost of Rs.20,000/- imposed upon the accused under Explanation-2 to Section-309(2) Cr.P.C.
Accused to deposit the cost with DLSA within 10 days.
Let the matter be listed for framing of notice and recording of plea of the accused.
Matter shall continue as per the guidelines laid down by the Hon'ble High Court of Delhi in Rajesh Aggarwal Vs. State (Supra).
Be listed on 23.01.2012.
(RAKESH KUMAR SINGH) MM-(NI Act)-Central-01/THC/Delhi/16.12.2011