Delhi District Court
Naveen Agarwal vs Videocon Industries Ltd on 16 September, 2015
IN THE COURT OF SH.SURESH CHAND RAJAN,
SPECIAL JUDGE (PC ACT)3: CBI,
PATIALA HOUSE COURTS, NEW DELHI
Cr.Rev.No.13/15
Naveen Agarwal
S/o Sh. R.D.Aggarwal
Prop. M/s N.K.Traders
Court Road, Opp. Dhingra Traders
Asian Pants, Morabadab, UP
............. Petitioner
Versus
Videocon Industries Ltd.
221 Okhla Industrial AreaII
New Delhi110020
.......... Respondent
Date of Institution: 17.04.2015
Reserved for Order on: 14.09.2015
Date of Order: 16.09.2015
ORDER
The present revision petition has been directed against the order dated 29.01.2015 passed by Ms.Saloni Singh, Ld.Civil Judge02, whereby an application moved on behalf of revisionist for sending the cheque in question to FSL/CFSL was dismissed.
2. Briefly stated the facts for giving rise to this CR No.13/15 Page no.1 of 9 Naveen Aggarwal Vs. Videocon Industries Ltd. revision is that the respondent/complainant has filed complaint case u/s 138 NI Act against the present revisionist alleging therein that accused is the proprietor of M/s N.K.Traders and he approached the respondent/complainant for being appointed as dealer for sale of goods manufactured by the complainant. He was appointed a dealer and accused/revisionist opened credit account in the name of N.K.Traders and purchased various electronic items on credit from time to time. There was substantial amount due and payable by the accused/revisionist to the complainant/respondent. The revisionist issued a cheque bearing no. 057218 dated 18.06.2011 for a sum of Rs.1,00,000/ drawn on Bank of India in favour of respondent/complainant towards part payment of admitted outstanding dues and also represented that the remaining amount shall be paid in due course. The cheque was signed by the accused/revisionist. It is further the case of the respondent/complainant that the cheque was presented with the bankers but it was returned unpaid with remarks 'Accounts Closed'. It is further the case of the complainant/respondent that legal notice dated 19.07.2011 was sent but accused/revisionist failed to make the payment. Hence complaint u/s 138 NI Act was filed. Upon receipt of the complaint, affidavit in presummoning evidence was tendered and accused/revisionist was summoned vide order dated CR No.13/15 Page no.2 of 9 Naveen Aggarwal Vs. Videocon Industries Ltd. 05.09.2011. Notice u/s 251 Cr.P.C was framed on 21.11.2012. Evidence of the complainant was recorded and thereafter statement u/s 313 Cr.P.C was also recorded. When the case was fixed for Defence Evidence, an application was moved, on behalf of accused/revisionist praying therein to send the cheque in question of FSL/CFSL. The said application was dismissed by the Ld. MM on 29.01.2015 observing that the sending the cheque would result in unnecessary delay in the trial proceeding and that the it does not indicate any alteration in the cheque. Feeling aggrieved by the said order dated 29.01.2015, the present revisionist has filed the present revision for setting aside the said order.
3. This revision was received by this court on 17.04.2015. Notice was issued to respondent and Trial court record was summoned which was received. Thereafter, I have heard the arguments from the Ld. Counsel for the revisionist as well as Ld. Counsel for the complainant/respondent.
4. During the course of arguments, it has been submitted by the Ld. Counsel for the revisionist that the cheque no.057218 was not issued in the year 2011 and the said cheque has been presented by making some forgery on it. It is further submitted that the respondent has supplied defective products to the revisionist. The respondent has filed a false and frivolous CR No.13/15 Page no.3 of 9 Naveen Aggarwal Vs. Videocon Industries Ltd. complaint against the revisionist. The cheque no.057219 dated 18.06.2008 was issued alongwith other three cheques no. 057217m 057220 and 057221. It is submitted that the respondent has altered the dated as 18.06.2011 instead of 18.06.2008. It is further submitted that the Ld. MM has committed grave error in dismissed the application as it was necessary to send the cheque to CFSL. It is submitted that the Ld. Trial Court has not checked the date on the cheque in question as well as the ink of the same. It is submitted that if the application of the revisionist is now allowed, he will suffer irreparable loss and injury. Ld. Counsel has submitted that the order passed by the Ld. MM may kindly be setaside and direction may be passed to send the cheque in question to CFSL.
5. On the other hand, Ld. Counsel for the respondent has strongly refuted the submissions made by the Ld. Counsel for the revisionist and he has drawn the attention of the court on the cheque in question and submitted that one can see from naked eye that there is no overwriting/alteration in the date column of cheques in question. It is been submitted that the Ld. MM has considered the arguments made by the revisionist and passed the order as per law. So, there is no need to interfere in the said order by this court. It has been submitted that the present revision may kindly be dismissed.
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6. In consideration of the arguments advanced by the Ld. Counsel for the revisionist as well as Ld. counsel for the respondent, I have also perused the trial court file and the orders passed by the Ld. MM.
7. Administration of Criminal Justice System rests on sound and well established legal principles. We are governed by a "Codified Law" as all the procedural aspects have been duly codified in Code of Criminal Procedure. The object of the Code is to ensure that accused persons gets a fair trial on certain well established and well understood lines in accordance with the notions of Principles of Natural Justice. These procedures have been duly codified in the Code, so as to have a uniform applicability. It is expected of every criminal court entrusted with responsibility of criminal adjudication to follow the duly prescribed procedure for adjudication of any matter pending before it, and not to come up with different procedures for different cases, so as to spring surprises for the parties to a petition.
8. Further, it is established principle of adjudication of Criminal Justice System that whenever a particular procedure and stage is "prescribed", for having certain factual or legal aspects to be taken into consideration, by the Court asesin of the matter, then all other procedure and stages for the same are CR No.13/15 Page no.5 of 9 Naveen Aggarwal Vs. Videocon Industries Ltd.
"proscribed".
9. It is pertinent to mention that the scope of this Court, in its revisional jurisdiction is limited and is required to be exercised only if, it is found that some injustice has resulted due to impugned order passed by Ld.Trial Court. Further, if the Trial Court, while passing the impugned order has acted, contrary to the well established principles of Law, or the order has been passed without any evidence to support the finding or if the finding arrived at, by Ld.Trial Court is perverse or such as no reasonable man could have arrived at on the same, on the basis of evidence, so produced before it.
10. The first contention of the Ld.Counsel that the respondent supplied defective material cannot be considered at this stage as it will be decided on the basis of evidence at final stage.
11. Another contention of the Ld. Counsel for the revisionist is that the cheque in question was not issued in the year 2011. I have perused the said cheque Ex.CW1/2. The date on the said cheque is shown as 18.06.2011. The contention of the Ld. Counsel is that it was not 2011 but it was 2008 and after removing 2008 it was made 2011. He also submitted that the cheque in question was issued along with other cheques bearing CR No.13/15 Page no.6 of 9 Naveen Aggarwal Vs. Videocon Industries Ltd. no. 057217, 057220 and 057221 in the year 2008. It is admitted by CW1 that cheques bearing no. 57220 and 57221 were given to the complainant and encashed in the year 2008. It is therefore, admitted that cheque no.57220 and 57221 were also given to the complainant during the year 2008. The cheque in question bearing no. 52218 was also issued from the same cheque book. The contention of the Ld. Counsel is that the complainant has misused the impugned cheque after making alteration in the date on the impugned cheque. It is also submitted that the revisionist closed his electronic goods business in the year 2009 and accordingly the account from which the impugned cheque was issued in the year 2008, was also closed.
12. When a contention has been raised that the respondent/complainant has misused the cheque, even in a case where a presumption can be raised u/s 118(a) or 139 of the Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right.. The right to defend oneself and for that purpose to adduce evidence is recognized in terms of subsection (2) of Sec.243 of the Code of Criminal Procedure. 'Fair Trial' includes fair and proper CR No.13/15 Page no.7 of 9 Naveen Aggarwal Vs. Videocon Industries Ltd. opportunities allowed by law to prove innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.
13. In the present case, there can be no valid objection to the submissions of Ld. Counsel for the revisionist seeking to prove that the date of the cheque was altered and for this purpose to obtain the opinion of handwriting expert as regards to the alteration of date. The revisionist being accused in a criminal case is entitled to prove his defence in any legal permissible manner, he chooses to adopt. The Court is duty bound to facilitate him in proving his defence, by producing such evidence as he may feel appropriate and necessary.
14. In the facts and circumstances, there was no valid and cogent reason for disallowing the application moved on behalf of the revisionist/accused before the Ld. Trial Court. Hence, the impugned order dated 29.01.2015 is set aside.
15. Ld. Trial Court is directed to send the cheque in question to FSL, Rohini for the opinion of Expert and obtain report as to whether there is any alteration in the date mentioned on the cheque.
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16. The FSL be directed to send the report within four weeks of the receipt of the cheques by FSL.
17. Before parting with this order, I wish to add that nothing mentioned hereinabove, shall tantamount to any expression of opinion on merits of the case, as the same have been observed only for disposal of the present revision petition.
18. Revision petition stands disposed off.
19. Trial Court record be send back with the copy of this order, for compliance.
20. Both the parties are directed to appear before the court of concerned Ld. MM on 22.09.2015.
21. The revision file be consigned to Record Room. Announced in the Open Court on 16.09.2015.
(S.C.RAJAN) Special Judge(PC Act) 03: CBI Patiala House Courts, New Delhi CR No.13/15 Page no.9 of 9 Naveen Aggarwal Vs. Videocon Industries Ltd.