Delhi District Court
M/S Grower'S Apple Centre vs M/S Shera Orchards on 16 October, 2012
IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS
JUDGE03: NW : ROHINI : DELHI
Criminal Revision No. 29/12
M/s Grower's Apple Centre
Fruit Commission Agent
B203, New Subzi Mandi, Azadpur
Delhi110033 ... Revisionist/Petitioner
Versus
1. M/s Shera Orchards, Prop. Sher Singh
S/o Sh. Ram Singh
R/o Village Chadi, P.O. Thachi
District Mandi, Himachal Pradesh
2. State Govt. of NCT of Delhi ...Respondents
ORDER
1. The revisionist has filed the present revision petition U/s 397 Cr.P.C. against the impugned order dated 02.03.2012 passed by Sh. Parveen Singh, Ld. ACJ/MM, Rohini Courts, Delhi dismissing the complaint case no. 2011/1/09, titled M/s Grower's Apple Centre vs. M/s Shera Orchad, filed by the revisionist/petitioner. Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 1 of 9
2. TCR has already been summoned. I have heard ld.
counsel for the revisionist and the respondent No.1 and ld. Addl. P.P. for the State/respondent No. 2 and have perused the entire record.
3. The revisionist/petitioner has taken the grounds among others that Ld. Trial Court failed to consider that the respondent/accused has not pointed out even a single discrepancy in the statement of account of the petitioner/complainant. Ld. Trial Court grossly erred in giving the findings on the version of the petitioner/revisionist and failed to consider the documents placed on record. Ld. Trial Court has failed to appreciate the evidence on record in the correct perspective. Ld. Trial Court failed to consider that the respondent/accused submissions that the cheque was not drawn for discharge in whole or in part of any debt or other liability is answered by third presumption available under section 139 of N.I. Act. The effect of these presumption is place the evidential burden on the respondent/accused of providing that the cheque was not issued towards the discharge of any liability. Ld. Trial Court failed to consider because both Sections 138 & 139 of N.I. Act require that the court Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 2 of 9 shall presume the liability of the drawer of the cheque for the amount for which the cheque is drawn. The obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused evidence showing the reasonable possibility of the non existence of the presume facts as held in Hten P. Dalal vs. Bratinder Nath Banerjee as reported in (2001) 6 Supreme Court Cases 16. Ld. Trial Court failed to consider that the revisionist/petitioner had given an advance amount of Rs. 50,000/ vide a payees account DD No. 00364 and similarly a sum of Rs. 2,00,000/ on 08.07.2004 vide DD No. A013166 and another amount of Rs. 2,00,000/ vide D.D. No. A013662 i.e. Rs. 4,50,000/. The said amount has not been disputed by the respondent/accused and the respondent/accused had only supplied goods worth Rs. 2,80,707.45P which amount have been credited to his account. Ld. Trial Court failed to consider that the cheque in question was given for consideration. The amount of the cheque consisted of the balance amount due from the respondent/accused alongwith interest @ 2% p.m. which was legal enforceable debt.
Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 3 of 9
4. Ld. Trial Court wrongly observed that the amount of the cheque is more than the amount outstanding against the respondent/accused. The revisionist/petitioner has clearly mentioned that the cheque amount inclusive the interest @ 2% p.m. which has been specifically pointed out and the Ld. Trial Court ought to have verified the same by adding and calculating the interest due as mentioned by the revisionist/petitioner. Ld. Trial Court failed to consider that the revisionist/petitioner has advanced the money of Rs. 4,50,000/ to the respondent/accused as per details as shown in the statement of account Ex.CW1/1. The same has not been disputed by the respondent/accused. As per the oral agreement and market uses the respondent/accused was to supply goods worth Rs. 13,50,000/ for which the revisionist/petitioner was under a legal obligation to arrange such an infrastructure to make arrangement for storage, supervision and auction which involves manual labour as well as one has to arrange space which cost the revisionist/petitioner, so this 2% per month was not only the interest for use of the capital amount belonging to the revisionist/petitioner and used by the respondent/accused but it also to cover the damages for loss of Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 4 of 9 commission which the revisionist/petitioner was to recover by the investment made and had also to adjust the expenses which has been incurred by the revisionist/petitioner for the infrastructure arranged for storage, supervision and auction purposes which went waste due to illegal and wrongful acts of the respondent/accused by non supplying of the goods to the revisionist/petitioner. In the present case the respondent/accused has not given any evidence nor he himself has entered in the witness box to discard the testimony of PW1. Therefore, the presumption is required to be drawn in favour of the holder of the cheque who has received it for discharge of liability in view of the decision of Hon'ble Supreme Court. The respondent/accused had not supported his defence by any proof sufficient to rebut the presumption to be drawn against him. Ld. Trial Court ought to have held that the defence taken by the respondent/accused herein without stepping into witness box and without denying the liability of payment of interest. It has also not been disputed that the respondent/accused has failed to fulfil his commitment and there is no cogent evidence produced by the accused to prove his special reason for issuance of cheque in Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 5 of 9 question. Ld. Trial Court was not justified to take the adverse view for not filing the calculation sheet of interest which was part of the ledger account alongwith the ledger account Ex.CW1/1, which was only an human error and ought to have given an opportunity to the revisionist/petitioner to explain the said discrepancy, though it was not a discrepancy as it was only a matter of calculation as the period for which the interest was to be charged from the date when the amount was advance and till the date when the cheque was issued, it was to be calculated on the balance amount @ 2% per month which could easily be verified. Ld. Trial Court failed to consider that the respondent/accused has not produced any evidence to discard the testimony of PW1, therefore, the presumption is to be drawn in favour of holder of the cheque who has received it for the discharge of the liability.
5. During arguments, the ld. counsel for the respondent stated that this appeal is not maintainable against the acquittal order/judgment passed by the Ld. Trial Court U/s 138 of N.I. Act since section 378 Cr.P.C. bars the jurisdiction of the Sessions Court to Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 6 of 9 entertain an appeal in case of acquittal. In support of this arguments, ld. counsel for the respondent has relied upon the order dated 26.02.2008 passed by the Hon'ble High Court of Delhi in Criminal M.C. 328/2006 titled Ashok Arora vs. P.R. Gupta. Ld. counsel for the respondent further relied upon the judgment dated 05.08.2002 passed by Hon'ble High Court of Delhi in Criminal Revision Nos. 398 & 1713 of 2000 in the case of Krisan Kumar Gupta vs. Mohammad Jaros and another, wherein respondent filed a complaint for prosecution of the petitioner for committing offence U/s 138 of Negotiable Instruments Act. The Ld. Magistrate dismissed the complaint and the said order was challenged by the respondent in a revision petition preferred before the Ld. Addl. Sessions Judge. The Ld. Addl. Sessions Judge agreed with the petitioner/accused that the revision petition was not maintainable but was of the view that the Court in exercise of the power vested by Section 397 Cr.P.C. may examine the legality and propriety of any findings, sentence and order so it can also look into any illegality of the proceeding by an Inferior Court and the Ld. ASJ held that the impugned order in the revision petition revealed an illegality and the defect in procedure and it Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 7 of 9 suffered from manifest terror in law which had resulted in the miscarriage of the justice. Therefore, the Ld. ASJ set aside the order dated 16.10.1999 of the Ld. Magistrate and restored the complaint and directed the Ld. Trial Court to proceed with its trial in accordance with law. It was held by the Hon'ble High Court that the respondent filed a revision petition against the order which the Ld. ASJ entertained and accepted it erroneously in exercise of his jurisdiction which did not vest in him. Indeed the respondent had resorted to a wrong remedy but he was granted the relief by a superior court. But at the same time, the petitioner had appropriate legal remedy by way of appeal for challenging the order of the Ld. Magistrate. Therefore, the impugned order of Ld. ASJ dated 22.08.2000 was not sustainable in law which was without jurisdiction and the same resulted in miscarriage of justice. It was, therefore, set aside. It was further held that, however, the respondent may, if so advised, filed an appeal against the order of the Ld. Magistrate dated 16.10.1999 in accordance with law.
6. In view of the above facts and circumstances and also the Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 8 of 9 judgements relied upon by the Counsel for the respondents, I am of the considered view that this revision petition is not maintainable and the same is dismissed. TCR along with copy of this order be sent back and thereafter revision petition file be consigned to Record Room.
Announced in Open Court (YASHWANT KUMAR)
th
On 16 October, 2012 ASJ/NW03/ROHINI/DELHI
Crl. R. No. 29/12; Grower's Apple Centre Vs. M/s Shera Orchards & Anr. Page 9 of 9