Delhi District Court
R vs Dr. Samuel Silas on 21 February, 2013
IN THE COURT OF SH. J. R. ARYAN, DISTRICT JUDGE & SESSIONS JUDGE,
NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI
CR no.04/13
Unique ID no. 02402R0012042013
R
Pratima Joseph
w/o Sh. Rajeev Noel Das,
r/o SKA-402, Plot no.14, Shipra Krishna Vista,
Ahinsa Khan, Indirapuram,
Ghaziabad, UP .........................REVISIONIST
versus
Dr. Samuel Silas
r/o F-122, Dilshad Colony,
MIG F3, Delhi .......................RESPONDENT
Date of institution of the case: 15.01.2013
Date of reserving the case for orders: 13.02.2013
Date of passing of order: 21.02.2013
CR no.02/13
Unique ID no. 02402R0012042013
Pratima Joseph
w/o Sh. Rajeev Noel Das,
r/o SKA-402, Plot no.14, Shipra Krishna Vista,
Ahinsa Khan, Indirapuram,
Ghaziabad, UP .........................REVISIONIST
versus
Dr. Samuel Silas
r/o F-122, Dilshad Colony,
MIG F3, Delhi .......................RESPONDENT
Date of institution of the case: 08.01.2013
Date of reserving the case for orders: 13.02.2013
Date of passing of order: 21.02.2013
JUDGEMENT
1. Accused Pratima Joseph summoned to face a charge for an offence of bouncing of cheque drawn by her in favour of complainant Dr.Samuel Silas CR no.100/12 Page 1/11 has come in revision against the order dated 30.08.2012 whereby her application under Section 311 CrPC for recalling the complainant Dr.Samuel Silas for his cross-examination has been dismissed for the reasons recorded in the order. Both sides counsels wherein Advocate Sh. Vaibhav Kumar appeared for the petitioner and Advocate, who appeared for the complainant Dr. Samuel Silas-respondent in this revision have been heard and I find that order impugned is not in consonance with the law laid down by the Hon'ble High Court in Rajesh Aggarwal's case which has been referred and relied for dismissing the prayer of the revisionist. Question arose if accused when summoned in a case of offence of cheque bouncing and when accused put on trial when notice of offence in terms of Section 251 CrPC was given to the accused and accused simply provided a response that he pleaded not guilty and claimed trial and if accused failed to take steps to move application under Section 145(2) of the Negotiable Instrument Act, would it be legal and proper that an opportunity to accused to put up his/her case by cross-examination of the complainant is denied and he/she is called upon to enter defence. Would it comply the basic criminal jurisprudence that before the accused is convicted, he had an opportunity to defend charge and to further extend this proposition in view of law defining offence of cheque bouncing when deemed to have been committed, to what extent accused was to be given an opportunity to put up and prosecute his defence in particular when offence was to be tried as summary trial.
2. Present order takes up two revisions for disposal, which are Cr.(R) No. 04/13 and 02/2013 as parties in both revision are same and subject matter in both cases is identical. In the second revision the cheques concerned are cheque no.286605 dated 04.02.2099 for Rs.75000/- and cheque no.286606 dated 05.02.2009 for Rs.70000/-.
3. In the present case learned MM taking recourse to judgment Rajesh Aggarwal's case dismissed the plea of accused to recall the complainant for CR no.100/12 Page 2/11 his cross-examination but then I find proceedings conducted in this case appear to be in violation of ratio held in Rajesh Aggarwal's case.
4. Present case under Section 138 of Negotiable Instrument Act was filed on 20.04.2009 by Dr. Samuel Salis on a plea and contention that being maternal uncle of accused Pratima Joseph and accused having approached complainant for a friendly loan that complainant provided a friendly loan of Rs.3,45,000/- about 1 ½ year ago and this loan was promised to be repaid in two months. Accused then avoided repaying the loan but finally she delivered three cheques first cheque dated 30.01.2009 drawn on HDFC Bank, Vasundhara Enclave, Delhi for Rs.50,000/-, second cheque dated 31.01.2009 drawn on SBI, Ansari Nagar for Rs.25000/- and third cheque dated 02.02.2009 drawn on SBI, Ansari Nagar for Rs.75000/- and these three cheques when presented for collection through complainant's banker, all three cheques bounced with bank memo / remark "Funds insufficient". It is further complainant's claim that cheque amount was not paid despite statutory demand notice issued and served upon the accused. Since complainant filed pre-summoning evidence in the form an affidavit and documents like cheque, bank return memos and legal notice and postal receipts were exhibited through affidavit, perusal of that material evidence suggested a prima facie case, learned MM passed summoning order on the very first date of the filing of the complaint i.e on 21.04.2009. File record further reveals that appearance of respondent-accused in the complaint could be secured only on 25.04.2011. Non-appearance of the accused during past two years period was on account of steps lacking on the part of complainant. Even after appearance of the accused on 25.04.2011, accused having been released on bail vide order dated 27.05.2011, vide order dated 13.09.2011 learned Trial Court observed a prima facie case made out and accordingly notice of offence was given to accused and accused simply got her plea recorded that she claimed trial and pleaded not guilty and learned MM then proceeded to direct accused as well her CR no.100/12 Page 3/11 counsel to move an appropriate application in terms of Section 145(2) of Negotiable Instrument Act and date 30.11.2011 was fixed to consider any such application.
5. On the adjourned date 30.11.2011 Court was presided over by Ld. Link M.M. and the Court proceeded to close an opportunity to accused for recalling of complainant or any of his witness for cross-examination as no application under Section 145(2) of N. I Act had been filed and learned Court relied upon Rajesh Aggarwal's case. Case was posted for defence evidence. Matter remained adjourned till on 06.03.2012, the Court came to be presided by another MM and learned MM found that application under Section 145(2) of N. I Act was filed before him and matter was adjourned. Finally on 04.04.2012 learned MM observed that opportunity for accused to cross- examine complainant had already been closed vide order dated 30.11.2011 and since case had been posted for defence evidence, application under Section 145(2) of N. I Act was dismissed. Matter remained adjourned for defence evidence and accused then moved application under Section 311 CrPC. On the next date case remained adjourned and the Court then presided over by another MM, who heard that application and dismissed the same on 30.08.2012. Thereafter case remained adjourned on two dates for defence evidence and finally it was fixed for final arguments.
6. It has been argued from the complainant's side that where accused had failed to plead any defence to the notice of the offence given to her and in the absence of any defence placed before the Court in any such application in terms of Section 145(2) CrPC then Court proceeding with the case for defence evidence committed no illegality. Application under Section 311 CrPC for recalling of the complainant for cross-examination was an attempt to undo the earlier order whereby application of accused under Section 145(2) of N I Act had been dismissed on 30.11.2011. Learned counsel argued that revision was without merit and was liable to be dismissed.
CR no.100/12 Page 4/117. Counsel for the revisionist submitted that accused-revisionist should not be condemned undefended and Court had failed to observe and followed the ratio laid down in Rajesh Aggarwal's case. I have considered both sides submissions and contentions.
8. Rajesh Aggarwal's case appears to be a landmark in the scenario of cases concerning offence of cheque bouncing piling in Courts and the Hon'ble Court expressed concern that whereas Negotiable Instrument Act provided a special summary procedure for trial and disposal of the cases and despite the Act providing deeming provision of offence committed when it was shown the cheque to have been drawn in discharge of a legally recoverable debt or liability and the complainant further found to have complied provisions of Section 138 (a)(b)(c) of Negotiable Instrument Act. In these circumstances, Court held that procedure being followed in Court of MM simply of putting accused on trial by giving him 251 CrPC notice and just recording his plea as not guilty and claiming trial defeated the spirit of the law and created a situation that matter were being proceeded as a full fledged trial. It has been held that Legislature provided for summary trial and the difference between summary trial and summons trial as appearing from the provisions under Section 262-265 CrPC and Section 251 CrPC onwards was obvious. In a summary trial as soon accused appears his plea was to be recorded under Section 262 (g) CrPC and his examination could be taken up by the Magistrate and then Court could record finding under Section 263(h) CrPC regarding that examination. It came to be held:-
"This is the mandate of Section 143 of N. I Act which provides summary trial of offence in terms of Cr.PC. 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 CR no.100/12 Page 5/11 cannot simplicitor say "I plead not guilty" and wants to face trial. Since offence under Section 138 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 of 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 usupr 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-examination 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 has been further held:
Since the mandate of Legislature is trial CR no.100/12 Page 6/11 of such cases in a summary manner, the evidence already given by the complainant by way of affidavit is sufficient proof of the offence and this evidence is not required to be given again in terms of Section 145(1) of N. I. Act and has to be read during the trial. The witnesses i.e the complainant or other witnesses can be recalled only when accused makes an application and this application must disclose the reason why accused wants to recall the witnesses and on what point witness is to be cross examined. One must not forget that the offence under Section 138 of N. I Act is not of the kind of offence as in IPC where the State prosecutes a person for offence against the society. The offence under Section 138 of N. I Act is an offence in the personal nature of the complainant and it is an offence made under N. I Act so that the trust in commercial transactions is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is not to face trial under Section 138 N. I Act, he alone has to take the plea of defence and burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out his defence to the Court and then proving this defences is on the accused. I, therefore, consider that the proper CR no.100/12 Page 7/11 procedure to be followed by MM is that soon after summoning, the accused must be asked to disclose his defence & his plea should be recorded. Where an accused takes no defence and simply say " I am innocent", there is no reason for the MM to recall the complainant or witnesses has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. In a summary trial, a complainant or his witness cannot be recalled in the Court for cross-examination only for the sake of pleasure. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross-examine only if the accused makes an application to the Court as to on what point he wants to cross-examine the witness(es) and then only the Court shall recall the witness by recording reasons thereto."
9. Ratio of the judgment suggests that as soon accused appears in summary trial matter before the Magistrate then his plea is to be recorded and in consonance with that plea, in a case under N. I. Act accused is required to move an application under Section 145(2) N. I Act and then Magistrate has to consider that application to examine if complainant or any witness of the complainant was required to be called for his examination and cross- examination.
10. In a situation when accused appears before the Court in the case which is required to be proceeded as a summary trial and there is omission in either examining the accused to disclose his defence or to record his plea on the CR no.100/12 Page 8/11 point of defence declining him an opportunity to cross-examine the complainant on a reasoning that he had failed to moved an application u/s 145(2) Negotiable Instruments Act may not be in consonance with ratio of Rajesh Aggarwal Judgement. It has been held in Rajesh Aggarwal case that soon after summoning when accused appears "he must be asked to disclose his defence and his plea should be recorded". Only when accused happens to take no defence and simply says "I am innocent", in that situation Magistrate may not have any reason to recall the complainant or witness during summary trial and Court can ask the accused to lead his defence of his innocence. In the present case as seen above, accused appeared before the Court on 25.04.2011. On next four dates no such proceedings were taken up to examine the accused about his defence or to record her plea. Even on 13.09.2011 when notice of offence in terms of section 251 Cr.P.C was given to accused, plea invited from the accused and then recorded is simple " I plead not guilty and claim trial". No such further question has been put by the Court as to what defence accused had and intended to prosecute. Case was simple adjourned for accused to move an application U/s 145(2) Negotiable Instruments Act. On the adjourned date, ld. MM dealing with accused appears to be on leave and matter was taken up before Link MM and ld. Link MM found that since no application had been filed for recalling of complainant or any witness then opportunity on that point was closed for accused.
11. To my view it would constitute denying a fair opportunity to accused to defend himself. May be the Court if had examined the accused or her plea when accused had appeared before the Court or had examined the accused about her defence when notice of offence was given to her, then Court itself could have taken an appropriate decision that recalling of complainant for cross-examination whether was made out or not. It is a matter of record that accused did move an application u/s 145(2) of the Negotiable Instruments Act CR no.100/12 Page 9/11 on 06.03.2012 and she laid down her plea and facts seeking justification to her plea for recalling of the complainant. That application was dismissed simply on a reasoning that such opportunity had already been closed and denied to accused vide order dated 30.11.2011. Numerous adjournment in the case between that period even defeated the very purpose and object of expeditious disposal of the case as a summary trial. Dismissal of that application u/s 145(2) Negotiable Instruments Act on 07.03.2012 was unjust in absence of merits of plea raised in the application taken up for consideration. Even thereafter case remained adjourned on several dates and finally accused moved an application u/s 311 Cr.P.C for calling the plaintiff for his cross-examination and it was dismissed on 30.08.2012, which is now the subject matter of the present revision. To my view where the Court had failed to record plea of accused or her examination on her appearance in Court and Court failed to record as to what defence she wanted to prosecute when notice of offence u/s 251 Cr.P.C was given to her, then asking and directing the accused to enter defence on a finding and reasoning that she had failed to move an application u/s 145(2) Negotiable Instruments Act would be a serious breach of criminal jurisprudence that accused must have a fair and reasonable opportunity to defend the charge. A look at the application which accused had moved u/s 145(2) Negotiable Instruments Act, she raised several points on the question of liability towards complainant, which according to complainant cheque issued in the case was towards discharge of that liability. Application of accused u/s 311 Cr.P.C was dismissed without examining the merits simply on reasoning that opportunity to cross-examine the complainant had already been closed. I find order impugned suffers illegality in exercise of jurisdiction by ld. MM. Impugned order dated 30.08.2012 is liable to be set-aside. Prayer of the revisionist to call the complainant for his cross-examination deserves to be accepted. Revision is, accordingly, allowed. It is, however, observed that since matter is pending in the Court for last CR no.100/12 Page 10/11 about four years, let ld. MM fixed a date for calling the plaintiff for his cross- examination by accused and accused shall ensure to take up that cross- examination and conclude it on one date and will not pray for any adjournment unless the Court found request unavoidable.
Announced in the open Court on ( J R ARYAN )
21.02.2013 District Judge & Addl. Sessions Judge,
In-Charge ( NE Distt. ), Karkardooma Courts,
Delhi
CR no.100/12 Page 11/11