Delhi District Court
Sh. Hans Raj vs Sh. Nagendra Sharma on 7 June, 2023
IN THE COURT OF V. K. BANSAL,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
Crl. Revision No.39/2023
CNR No.DLNE01-000685-2023
In the matter of:
Sh. Hans Raj
S/o Late Sh. Prabhu Dayal,
R/o Flat No.162, DDA MIG Flats,
Madipur, Delhi-110063. .........Revisionist
Versus
Sh. Nagendra Sharma,
S/o Late Sh. G. C. Sharma,
R/o C-1/28, 1st Floor,
Yamuna Vihar, Delhi-110053. ........Respondent
Date of registration of revision: 25.02.2023
Date when revision was received by this Court: 28.02.2023
Date of conclusion of arguments: 03.06.2023
Date of pronouncement of judgment: 07.06.2023
JUDGMENT:
1. The present revision has been preferred against the order dated 21.01.2023 passed by the Ld. Trial court vide which the application under Section 145 (2) of the Negotiable Instruments Act was dismissed.
2. Brief facts giving rise to present revision are that Nagendra Sharma (hereinafter referred to as the complainant/respondent) filed compliant under Section 138 of Negotiable Instrument Act against Hans Raj (hereinafter referred to as the Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 1/9 BANSAL Date:
2023.06.07 16:05:57 +0530 revisionist/accused) alleging that the revisionist/accused towards discharge of his legal liability issued cheque no.294761 dated 16.04.2022 for a sum of Rs.9 lacs drawn on SBI, Karol Bagh, Delhi in favour of the complainant/respondent. The cheque when presented for encashment, it was returned unpaid due to reason "funds insufficient" vide return memo dated 18.04.2022. Legal demand notice dated 13.05.2022 was sent to the revisionist/respondent but no payment was made by him. Hence, the complaint.
3. Ld. MM after considering the evidence of the complainant/respondent summoned the revisionist/respondent for offence punishable under Section 138 of the N. I. Act.
4. Notice under Section 251 Cr.P.C was given to the respondent/revisionist to which he pleaded not guilty and claimed trial. He moved an application under Section 145 (2) of the N.I. Act asserting his right to cross-examine the complainant. The application was dismissed by the Ld. Trial Court vide order dated 21.01.2023. Aggrieved by the order, the present revision has been preferred.
5. Notice of the revision was sent to the complainant/respondent, who has put his appearance. Trial Court record has been requisitioned.
6. I have heard Ld. counsels and perused the record.
7. Ld. counsel for the revisionist submitted that after notice under Section 251 Cr.P.C was given for offence punishable under Section 138 of the N.I. Act, the revisionist/respondent moved an application under Section 145 (2) of the N. I. Act, asserting his right to cross-examine the witness of the complainant/respondent specifically mentioning the reasons in para 4 of the application.
Same is reproduced as under:- Digitally
signed by
VIRENDER
VIRENDER KUMAR
KUMAR BANSAL
CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 2/9 BANSAL Date:
2023.06.07
16:06:38
+0530
"4. That the accused returned the entire loan amount, even he repaid Rs.13,00,000/- approx (more than the loan amount) to the complainant and thereafter requested at many occasions for returning the original cheques and other documents, but the complainant presented the cheque in question without any prior intimation and knowledge of the accused and when the accused came to know about the presentation of the cheque in question through text message from the bank, thereafter the accused contacted the bank to stop the payment of the cheque in question, the bank stopped the payment but wrongly mentioned "Insufficient Funds" instead of "Stop Payment". Therefore, the complainant misused the cheque of accused and filed the present case. It is pertinent to mention here that the accused also issued Legal notice dated 30.09.2022 to the complainant regarding the returning of the original blank signed cheques and original blank signed documents. But the complainant neither complies nor replies to the contents of said legal notice despite service."
8. Ld. counsel submitted that despite the fact that there is specific averment in the application that he has already returned the entire amount, the Ld. Trial Court has not allowed the application. Ld. counsel submitted that Section 145 (2) of the N. I. Act provides as under:-
"Section 145 (2) in the Negotiable Instruments Act, 1881- (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."
9. Ld. counsel submitted that it is clear that if an application is moved, the Court shall allow the same under Section 145 (2) of the N. I. Act. Ld. counsel submitted that it is clear from the perusal of Section 145 (2) of the N. I. Act that where the application is moved by the prosecution or the accused, the Court would be obliged to summon and examine the person giving evidence on affidavit without any discretion. Ld. counsel in support of his arguments has relied on judgment titled as Mandvi Co-op Bank Ltd. Vs. Nimesh B. Thakore, AIR 2010 SC 1402 wherein the Hon'ble Supreme Court has specifically held in para Digitally signed by VIRENDER VIRENDER KUMAR CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 3/9 KUMAR BANSAL BANSAL Date:
2023.06.07 16:06:54 +0530 21 and 22 as under:
21. Nevertheless, the submissions made on behalf of the parties must be taken note of and properly dealt with. Mr Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No. 4760/2006 pointed out that sub-
section (2) of Section 145 uses both the words, "may" (with reference to the court) and "shall" (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit. Mr. Ranjit Kumar referred to Setion 137 of the Indian Evidence Act, that defines "examination-in- chief", "cross-examination" and "re-examination" and on that basis sought to argue that the word "examine" occurring in Section 145(2) must be construed to mean all the three kinds of examination of a witness. This, according to him, coupled with the use of the word "shall" with reference to the application made by the accused made it quite clear that a person giving his evidence on affidavit, on being summoned under section 145(2) at the instance of the accused must begin his deposition with examination-in-chief, before he may be cross-examined by the accused. In this regard he submitted that section 145 did not override the Evidence Act or the Negotiable Instrument Act or any other law except the Code of Criminal Procedure. He further submitted that the plain language of section 145(2) was clear and unambiguous and was capable of only one meaning and, therefore, the provision must be understood in its literal sense and the High Court was in error in resorting to purposive interpretation of the provision. In support of the submission he relied upon decisions of this court in Dental Council of India vs. Hari Prakash and Ors., (2001) 8 SCC 61 and Nathi Devi vs. Radha Devi, (2005) 2 SCC 271. Mr. Siddharth Bhatnagar, learned counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106/2007 also joined Mr. Ranjit Kumar in the submission based on literal interpretation. He also submitted that ordinarily the rule of literal construction should not be departed from, particularly when the words of the statute are clear and unambiguous. He relied upon the decision in Raghunath Rai Bareja vs. Punjab National Bank, (2007) 2 SCC
230.
22. We are completely unable to appreciate the submission. The plea for a literal interpretation of Section 145 (2) is based on the unfounded assumption that the language of the section Digitally signed by VIRENDER VIRENDER KUMAR CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 4/9 KUMAR BANSAL BANSAL Date:
2023.06.07 16:07:05 +0530 clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find nothing in Section 145(2) to suggest that. We may also make it clear that Section 137 of the Evidence Act does not define "examine" to mean and include the three kinds of examination of a witness; it simply defines "examination-in- chief", "cross-examination" and "re-examination". What section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein. What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in light of the provision of section 141(1) and having regard to the object and purpose of the entire scheme of section 143 to 146. The scheme of section 143 to 146 does not in any way affect the judge's powers under section 165 of the Evidence Act. As a matter of fact, section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit. In so far as the prosecution is concerned the occasion to summon any of its witnesses who has given his evidence on affidavit may arise in two ways. The prosecution may summon a person who has given his evidence on affidavit and has been cross-examined for "re-examination". The prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit. In that event the witness may be summoned to appear before the court to cure the defect and to have the document(s) properly proved by following the correct legal mode. This appears to us as the simple answer to the above question and the correct legal position. Any other meaning given to sub-section (2) of section 145 as suggested by Mr. Ranjit Kumar would make the provision of section 143(1) nugatory and would completely defeat the very scheme of trial as designed under section 143 to 147
10. Keeping in view all these facts and the law laid down by Digitally the Supreme Court, the Ld. Trial Court was obliged to allow the signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.06.07 16:07:14 +0530 CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 5/9 application, but the Court has dismissed the same. The order is, therefore, not maintainable as bad in law. It is prayed that the order be set aside.
11. Ld. counsel for the respondent/complainant submitted that the ld. Trial Court has rightly dismissed the application. If arguments as forwarded by ld. counsel for the revisionist/respondent are to be considered then there is no discretion with the Court and even if the story of "Ali Baba chaalis chor" is mentioned in the application moved under Section 145(2) the Court will have to summon the witness. Ld. counsel submitted that the Hon'ble High Court of Delhi in case titled as Maa Tarini Industries Ltd. & Anr. Vs. PEC Ltd, 2021 (2) DCR 200 has specifically held in para 15 and 18 as under:
"15. In view of the procedure prescribed under the Cr.P.C , if the accused appears after service of summons, the learned Metropolitan Magistrate shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice under Section 251 Cr.PC and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under Section 145(2) of NI Act for recalling a witness for cross-examination on plea of defence. 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. Once the summoning orders in all these cases have been issued, it is now the obligation of the accused to take notice under Section 251 of Cr. PC., if not already taken, and enter his/her plea of defence before the concerned Metropolitan Magistrate‟s Court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witnesses, they should do so before the Court of Metropolitan Magistrate.
18. The provisions of Section 142 to 147 lay down a Special Code for the trial of offences under the Chapter XVII of the N.I. Act. While considering the scope and ambit of the amended provisions of the Act, the Supreme Court in Mandvi Co. Op. Bank Ltd. v. Nimesh B. Thakore , AIR 2010 SC 1402, has held that the provisions of Section 143, 144, 145 and 147 expressly depart from and override the provisions of the Cr.P.C the main body of adjective law for criminal trials. The Supreme Court Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 6/9 BANSAL Date:
2023.06.07 16:07:27 +0530 has further held as under:- "
"17. It is not difficult to see that Section 142 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and section 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial."
12. Ld. counsel submitted that once an application under Section 145 (2) of the N. I. Act for recalling witness has been moved, the Court shall decide the same or otherwise itself proceed to take defence evidence. It is not merely because an application has been moved that witness be summoned. There must be sufficient defence disclosed from the application before the Court applies its mind and orders that witness be summoned. Ld. counsel prayed that the Ld. Trial court has dismissed the application after considering all the facts as only two defence taken are, first the revisionist/respondent has returned the entire loan amount which can be established only by him and second defence taken is that the cheque was not returned due to insufficiency of funds but instead of stop payment. Ld. counsel submitted that to prove this defence also presence of the witness of the complainant is not required at all. It is the revisionist who has to prove that he has made the entire payment and the cheque was not returned due to insufficiency of funds but due to stop payment. The Ld. Trial Court after considering all these facts has rightly dismissed the application. It is prayed that there is no merit in the revision and same be dismissed.
13. After hearing arguments and going through the record, I Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 7/9 BANSAL Date:
2023.06.07 16:07:35 +0530 found that the revisionist herein has taken defence that he has returned the entire amount which he has mentioned as Rs.13 lacs. The cheque is of Rs.9 lacs which according to him was given considering the request of complainant/respondent but he has not returned the original cheque and documents even after receiving the entire amount and presented the cheque for encashment. To prove this fact no doubt he can also prove that but he has valuable right to cross-examine the complainant on this aspect as to whether complainant/respondent has received the entire amount and thereafter he also demanded back his cheque. Therefore, the application should have been allowed. Even otherwise, the Hon'ble High Court of Delhi in case titled as Century Aluminium Manufacturing Company Ltd. v Hero Fincorp Ltd., 2022 (1) JCC 524 has held that once an application is moved under Section 145 (2) of N. I. Act, it is obligation for the Court to allow the application and summon the witness. The Court has observed as follows....
"9. On a conspectus of the statutory provision that is Section 145 N.I. Act and the aforesaid decisions, it is discernible that sub-section (2) of Section 145 N.I. Act mandates the concerned Court to summon the person giving evidence on affidavit in terms of Section 145(1) N.I. Act if an application is filed by the accused seeking such relief. The discretion of the Court is exercisable in the event when no such application has been filed on behalf of either party and the Court is acting suo motu."
14. Keeping in view the facts of the case and the judgment of the High Court of Delhi and the law laid down by the Hon'ble Supreme Court in case titled as Mandvi Co-op Bank Ltd. Vs. Nimesh B. Thakore, AIR 2010 SC 1402 in my opinion the order of the Ld. Trial Court is not sustainable. Same is, therefore, set aside. The revision is allowed. The Ld. Trial Court shall summon the witness of the complainant for cross-examination by Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 8/9 2023.06.07 16:07:46 +0530 revisionist/respondent.
15. Trial Court record along with copy of this order be sent back.
16. Revision file be consigned to the Record Room.
Digitally signed
VIRENDER by VIRENDER
KUMAR KUMAR BANSAL
Date: 2023.06.07
BANSAL 16:08:07 +0530
Announced in the open (V. K. BANSAL)
court today i.e on 07.06.2023 Principal District & Sessions Judge,
North East, Karkardooma Courts, Delhi.
CR no.39/23 Hans Raj Vs. Nagendra Sharma Page 9/9