Delhi District Court
District & Sessions Judge : South West vs State on 11 March, 2015
IN THE COURT OF MS. RAVINDER KAUR,
DISTRICT & SESSIONS JUDGE : SOUTH WEST
DISTRICT DWARKA COURTS : NEW DELHI.
CR No. 04/2015, 05/2015, 06/2015 and 07/2015
Unique I.D No. 02405R0004282015
M/s. Bebb India Pvt Ltd.
Through its Authorized Representative
Having its registered office at :
406A, Indraprastha Tower,
6 Commercial Complex,
Wazirpur, Delhi-110052 ............ Petitioner
Versus
1. State
Through Public Prosecutor, Prosecution Branch,
Dwarka Courts,
New Delhi-110075
2. Usha Industries
Through its Proprietor Mr. Datta Sarpale
Plot No. F-65, MIDC
Waluj, Aurangabad,
Maharashtra
3. Mr. Datta Sarpale
Proprietor of Usha Industries
Plot No. F-65, MIDC
Waluj, Aurangabad,
Maharashtra-431133
Page no. 1
Also At:
Row No. 7G, Sahara Vihar
Pandarpur, Aurangabad
Maharashtra-431116 ............Respondents
Date of Institution : 14.01.2015
Date of Decision : 11.03.2015
ORDER
1. Vide this common order, I shall dispose of the revision petitions bearing no. 04/15, 05/15, 06/15 and 07/15 filed against the impugned order of the trial court dated 25.11.2014, whereby the trial court directed to return the complaint under Section 138 N.I. Act filed by the revisionist, to file the same before the appropriate court of jurisdiction in terms of the judgment of the Hon'ble Apex Court in case titled as Shivgiri Associates and Ors. VS Metso Minerals (India) Pvt Ltd in Cr. Appeal No. 177/2017, decided on 20-08-14 and in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra and Anr (Crl. Appeal No. 2287 of 2009) decided on 1.8.2014.
2. Notice of the revision petitions was issued to the respondent.
3. TCR was summoned and perused.
Page no. 2
4. Brief facts necessary for disposal of the present petitions are that the petitioner had filed four separate complaints against the present respondent u/s 138 NI Act r/w section 139 and 142 of NI Act. Ld. Trial court vide its order dated 30-01-14 issued summons to the respondent. Thereafter, on 10-05-14 notice u/s 251 Cr.PC was given to the respondent in each of the complaint case and his plea was recorded.
5. An application u/s 145 (2) NI Act was moved by the respondent/accused on 10-05-2014 seeking permission to recall the complainant's/petitioner's witness for cross-examination. The Trial court while observing that the respondent had plausible defence to make, allowed the application and adjourned the matter for CE for 26-07-14. However, on 26-07-14, the cross-examination of the complainant could not be conducted as Ld. Presiding Officer was on leave. Even thereafter, on 20-09-14, when the matter was fixed for the same purpose, the cross-examination could not be conducted due to Ld. PO being on leave.
6. Thereafter, vide impugned order dated 25-11-14, in terms of the judgments of the Hon'ble Supreme Court in Shivgiri Associates and Ors. VS Metso Minerals (India) Pvt Ltd in Cr. Appeal No. 177/2017, decided on 20-08-14 and in the case of Page no. 3 Dashrath Rupsingh Rathod Vs. State of Maharashtra and Anr (Crl. Appeal No. 2287 of 2009) decided on 1.8.2014, the trial court directed to return all the four complaints under Section 138 N.I. Act filed by the revisionist, to file the same before the appropriate court of jurisdiction.
7. Aggrieved by the said order, the present revision petitions have been filed by the petitioner/complainant, whereby it is submitted that the impugned order has been passed in the mechanical manner without considering the facts on record i.e. vide order dated 10-05-14, proceedings of the case had gone beyond the stage of 145 (2) NI Act and were fixed for cross-examination of complainant's witness. That the judgment cited by the Ld. Trial court is misconceived and has been wrongly interpreted. It is prayed that the impugned order dated 25-11-14 be set-aside in all the four complaints.
8. I have heard counsel Shri Kamal Bahl, counsel for the revisionist, Shri Anil Kumar Gupta, Ld. CPP for State and counsel Shri Ajay Gupta, counsel for the respondents no. 2 and 3 and have also gone through the record carefully.
9. The counsel for the petitioner has submitted that once the application u/s 145 (2) NI Act of the Page no. 4 respondent was allowed by the trial court, the proceedings of the case had gone gone beyond the stage of 145 (2) NI Act and as such, in view of the judgment of the Hon'ble Apex Court in the case of Dashrat Rupsingh Rathod VS State of Maharashtra and Anr (Supra), all the four complaint cases shall be deemed to have been transferred by the Hon'ble Apex Court from the court ordinarily possessing territorial jurisdiction to the court where they are presently pending. It is submitted that the impugned order of the trial court is contrary to the spirit of the judgment of the Hon'ble Apex Court and is liable to be set aside. In support of its contentions he has relied upon the judgment of our own Hon'ble High Court in the case of United Teleservices Pvt Ltd VS Celestial Tech Vates Ltd., Crl. M.C. No.4017/2014, decided on 11-09-2014 and in the case of Naveen Malhotra Vs State (Govt. of NCT of Delhi) and Ors TR.P. (Crl.) 11/2015, decided on 25-02-2015. It is submitted that in both these cases, it was held by the Hon'ble High Court that after the stage u/s 145 (2) NI Act had reached, merely for the reason the cross- examination of the complainant did not took place, the said complaint cases were not liable to be transferred from the court where they were presently Page no. 5 being tried.
10. On the other hand the counsel for the respondent has submitted that there is no infirmity or illegality in the impugned order of the trial court transferring the complaint cases to the court of appropriate jurisdiction as in none of the complaint case the recording of evidence, as observed by the trial court in the impugned order, had commenced. In support of his contentions he has relied upon the judgment of Hon'ble Gujarat High Court in the case of Mukesh Bhai Prajapati VS State of Gujarat and another R/SCR.A/4194/2014 dated 01-12-2014. It is submitted that in the aforesaid judgment, the order of the trial court of transferring the five complaint cases to the court of appropriate jurisdiction was challenged and in one of the complaints the cross-examination of the complainant was on the verge of being completed, whereas, in other four cases the complainant had adduced his evidence on affidavit but his cross-examination was yet to commence. It was held by the Hon'ble Gujarat High Court in the above referred case "when the Supreme Courts says "recording of evidence has commenced as envisaged in section 142 (2)" only means that the cross-examination has actually begun. If the complainant is yet to step in the box for the Page no. 6 purpose of cross-examination by the accused then those cases according to me are covered by the judgment of the Supreme Court. To put it in other words such types of cases should be transferred. I do appreciate that if I have to consider only the interpretation of the words "proceedings have gone to the stage of section 145 (2) or beyond" then probably the learned counsel appearing for the complainant may be right, but at the same time I should not give ignore the first para of para-22 which makes it very clear that the recording of evidence should have actually commenced as envisaged in section 145 (2). There is a fine distinction between the term "has commenced" and "have gone to the stage of section 145 (2)". But for the words "the recording of evidence has commenced" I would have probably disagreed with the learned Magistrate".
11. I have carefully gone through the judgments cited by both the parties.
12. It is observed that the Hon'ble Apex Court in the case of Dashrat Rupsingh Rathod VS State of Maharashtra and Anr (Supra), in para 20 has made certain observations which are bearing direct impact on the cases in hand. Para 20 is hereby reproduced "We are quite alive to the magnitude of Page no. 7 the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/Respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in section 145 (2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases Page no. 8 where proceedings have gone to the stage of section 145(2) or beyond shall be deemed to have been transferred by us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending. All the complaints (obviously including those where the accused/Respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.
13. In view of the observations made by the Hon'ble Apex Court in the case of Dashrat Rupsingh Rathod VS State of Maharashtra and Anr (Supra) in para 20 to the effect that the "recording of evidence has commenced as envisaged in section 145 (2) of the NI Act, the proceeding will continue at that place i.e. where they are presently pending", I find no infirmity in the impugned order of the trial court where it is specifically observed by the Ld. MM that recording of evidence has yet not commenced and directed for the return of each of the four complaints to be presented before the court of Page no. 9 appropriate jurisdiction. All the four revision petitions being devoid of merits are hereby dismissed. Trial Court Record be sent back alongwith copy of this order.
14. Revision files be consigned to the record room. Announced in the open court on the 11th day of March, 2015 (Ravinder Kaur) District & Sessions Judge South West District Dwarka Courts/Delhi.
Page no. 10 CR No. 04/15, 05/15, 06/15 and 07/15 M/s Bebb India Pvt Ltd VS State and Ors.
11.3.2015 Present: None.
Vide my separate order of the date, the revision petitions are dismissed. TCR be sent back along with copy of this order.
Revision files be consigned to record room.
(Ravinder Kaur) District & Sessions Judge South West District Dwarka Courts/11.03.2015 Page no. 11