Delhi District Court
Through Its Authorized Representative vs Madhulika Saraf on 22 November, 2017
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS
NEW DELHI
Criminal Revision No.: 58/17
In the matter of:
M/s AVJ Developers (India) Pvt. Ltd.,
Having Regd. Office At:
Plot No. C, Community Centre,
Anand Vihar, Delhi-110092.
Through its Authorized Representative
Mr. Navneet Malhotra. .......... Petitioner
VERSUS
Madhulika Saraf
W/o Ram Kishan Saraf
R/o J-97, Ground Floor
Saket, New Delhi-110017. .......... Respondent
Criminal Revision No.: 57/17
In the matter of:
M/s AVJ Developers (India) Pvt. Ltd.,
Having Regd. Office At:
Plot No. C, Community Centre,
Anand Vihar, Delhi-110092.
Through its Authorized Representative
Mr. Navneet Malhotra. .......... Petitioner
VERSUS
Kaushilya Saraf
W/o Banwari Lal Saraf
R/o J-97, Ground Floor
Saket, New Delhi-110017. .......... Respondent
CR No. 57/17 & 58/17 Page 1 of 8
Date of institution of Applications : 24.01.2017
Date of reserve for order : 31.10.2017
Date of order : 22.11.2017
ORDER
The afore-said applications under section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C.), made by the applicant AVJ Developers (India) Pvt. Ltd. (hereinafter referred to as 'the accused') against the respondents Madhulika Saraf and Kaushilya Saraf (hereinafter referred to as 'the complainant'), are directed against the common order dated 27.01.2017, passed by the court of Metropolitan Magistrate-02, NI Act, South, Saket, New Delhi, whereby, in complaint cases no. 470677/16 (56/2016) entitled Madhulika Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors. and 470676/16 (57/2016) entitled Kaushilya Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors., the Learned Metropolitan Magistrate overruled and disallowed the objections raised by the defence counsel regarding admissibility of certain documents.
2. The circumstances giving rise to the applications are that the complainants made separate complaints under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the N.I. Act') against the accused persons, namely, AVJ Developers (India) Private Limited, Vinay Jain, Asha Jain and Vipin Aggarwal with the view to take CR No. 57/17 & 58/17 Page 2 of 8 cognizance of the offence and to summon, try and punish them for having committed the said offence. The details of complaint cases are as under:
CR No. Complaint No. Cheque No. & date Amount in INR 57/17 470676/16 067258 16.12.2015 1,05,00,000 (57/16) 067226 16.11.2015 78,750 067227 16.12.2015 78,750 58/17 470677/16 067259 16.12.2015 1,42,00,000 (56/16) 067201 16.12.2015 1,06,500 067203 16.10.2015 1,06,500 067202 16.11.2015 1,06,500
3. During the evidence of the complainant, an application was made on behalf of the accused to object regarding exhibition and admissibility of documents.
4. On 27.01.2017, the above-said applications were dismissed by the Learned Metropolitan Magistrate. Vide the impugned common order, while dismissing the application, the Learned Metropolitan Magistrate, inter alia, observed as follows:-
"......Matter is fixed for cross examination of CW-1. It is stated on behalf of complainant that the witness wants to adopt the pre- summoning evidence as post summoning evidence.
At this stage, counsel for accused objects to exhibition and admissibility of the documents by way of application and oral arguments. Copy supplied.
XXX XXX XXX XXX XXX Arguments heard. Record perused.
There is no iota of doubt that it is now well settled legal preposition that objections as to admissibility of the documents as well as their relevancy has to be decided at once immediately CR No. 57/17 & 58/17 Page 3 of 8 the objections are raised. However, in garb of adjudication of admissibility and relevancy of the documents, court cannot pronounce a final word as to evidentiary value of the document as the probative value of the document has to be considered after weighing the evidence as a whole as well as the facts and circumstances of the case. Further, mere marking of exhibition on any document does not mean that the document has been proved ipso facto and objections as to admissibility of the document and the objections as to mode of proof of the document are two separate objections.
As far as objections as to Ex. CW-1/1 is concerned, the objection as to admissibility is disallowed and objection as to mode of proof is also disallowed but the accused is at liberty to the accused to cross-examine the witness/SPA holder of the complainant during cross-examination as to the point of credibility of the document and the evidentiary value of the document cannot be decided at this stage and has to be considered/adjudicated at the final stage only.
As far as objection as to resolution ie ExCW1/2 is concerned, the objection as to admissibility and relevancy is disallowed but objection as to mode of proof is allowed and considering the fact that matter is at the stage of post summoning evidence, witness is directed to produce the minutes of the meeting / minuted book on NDOH for the purpose of cross examination.
The objection as to admissibility and relevancy as to MOU ExCW1/3 is disallowed because the complainant is putting this document on record to show the liability of the accused to pay the cheque amount but not for enforcement of any right or liability which is arising out of this contract or document and therefore, the document can be relied for collateral purpose. As far as the objection "OSR" is concerned, the term OSR has been mentioned during pre-summoning evidence of the witness and accused cannot be allowed to challenge the authenticity of the examination recorded in the court in the presence of ld Presiding officer.
Further the objection as to cheques ie ExCW1/4 to ExCW1/7 are disallowed being irrelevant. Further the objections as to return memo ExCW1/8 to ExCW1/11 to the extent of mode of proof are allowed and considering the fact that matter is at initial stage, the complainant is directed to summon the witness from the bank to prove the return memos properly and similarly the objections as to notice ExCW1/12, postal receipts and internet report ExCW1/13 to ExCW1/20 are allowed to the extent that complainant is given opportunity to prove these documents by summoning the record from postal authority. However, the objection as to the admissibility and relevancy of these documents is disallowed.
Further the objections as to affidavit ExCW1/A are also disallowed as the affidavit has been again sworn in the court during pre-summoning evidence and each & every document CR No. 57/17 & 58/17 Page 4 of 8 relied upon by the witness in the affidavit has been duly marked and denoted and signed by the Ld Presiding Officer during pre- summoning evidence.
In view of the determination of above said objections, it is appropriate that before cross examination of CW-1, complainant be given opportunity to prove the cheque return memo ExCW1/8 to ExCW1/11and the postal receipts ExCW1/13 to ExCW1/20 by summoning the record from the concerned department.
Complainant is directed to take steps within 07 days. Relist for leading further CE on 10.03.17. Copy of the order be given dasti to both parties as prayed for."
5. Feeling aggrieved of the impugned order, the applicant has made the aforesaid applications.
6. I have heard SPA of the respondent and have gone through the record of the complaint case no. 470677/16 (56/2016) entitled Madhulika Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors. and case no. 470676/16 (57/2016) entitled Kaushilya Saraf v. AVJ Developers (India) Pvt Ltd. & Ors., pending before the Learned Magistrate. None appeared for the applicant / revisionist for addressing arguments despite several opportunities granted, therefore, the court proceeded to dispose off the matter without hearing arguments on behalf of the applicant.
7. It is submitted by SPA of the respondent that the objections raised on behalf of the accused were irrelevant and not sustainable. It is further submitted that impugned order is an interlocutory order and revision petition against such order is not maintainable.
CR No. 57/17 & 58/17 Page 5 of 88. I have given my thoughtful consideration to the submissions made on behalf of the respondents and the grounds taken by the applicant in the revision petition.
9. As already observed, vide the impugned order, the Learned Metropolitan Magistrate disposed off the objections raised on behalf of the accused during the evidence of the complainant.
10. A perusal of record of complaint cases reveals that the Learned Magistrate has properly dealt with the objections raised by the applicant during the evidence of the complainant in the impugned order. It seems that objections have been raised on behalf of the applicant only for the sake of taking objection. It was opened to the applicant to ask in cross-examination questions to assail the veracity of the witness and execution and contents of the documents. Moreover, vide the impugned order, the Learned Magistrate has already opined that it would be appropriate that before cross-examination of CW-1, complainant be given opportunity to prove the cheque return memo Ex. CW-1/8 to Ex. CW-1/11 and the postal receipts Ex. CW1/13 to Ex. CW1/20 by summoning the record from the concerned department.
11. Even otherwise, the impugned order is an interlocutory order. Under section 397 (2) Cr.P.C., revision CR No. 57/17 & 58/17 Page 6 of 8 applications against interlocutory orders have been in terms excluded. This provision is made with a view not only to avoid justice being delayed but sometimes justice being defeated because, by availing the facilities to file revision application against interlocutory orders, the hearing of the case may be stayed for a long time. The term "interlocutory order" is used in a restricted sense. It denotes an order of purely interim or temporary nature. An interlocutory order is conversed of the final order. An interlocutory order is one made or given during the progress of an action. The feasible test is whether by upholding the objections raised by a party, it would result in culmination the proceedings, if so any order passed on such objection would not be merely interlocutory in nature as envisaged in section 397 (2) of Cr.P.C. It has been held in case of State of Gujarat v. Gaurang Mathurbhai Leuva, 1999 SCC Online Guj 116 as follows:-
"All these decisions abundantly make it clear that the document if exhibited by the Court passing the order, the order which is passed would be the interlocutory order and not the final order determining the rights and liabilities of the parties finally because subsequently either of the parties can question the genuineness of the document and in that case it is open to the Court to accept of discard the document having due regards to the facts and circumstances on record. This revision application against the order in question is, therefore, in view of Section 397(2) of the Criminal Procedure Code is not maintainable, as the order in question is the interlocutory order."
In the light of law laid down in Gaurang Mathurbhai Leuva's case (supra), the impugned order is an CR No. 57/17 & 58/17 Page 7 of 8 interlocutory order and as such is not amenable to revision.
12. In view of above discussion, I find no illegality and irregularity in the impugned order, dated 27.01.2017, passed by Learned Trial Court. The revision is without merit and, therefore, dismissed.
13. Files be consigned to the Record Room. The record of the complaint cases no. 470677/16 (56/2016) entitled Madhulika Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors. and 470676/16 (57/2016) entitled Kaushilya Saraf v. AVJ Developers (India) Pvt. Ltd. & Ors., called from the court of the Learned Magistrate be sent back alongwith a copy of this order.
14. The parties are directed to appear before the Learned Trial Court on 28.11.2017 at 2.00PM.
Announced in the open court (DR. RAKESH KUMAR) on this 22nd day of November 2017 Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi CR No. 57/17 & 58/17 Page 8 of 8