Delhi District Court
Ing Vysya Bank Ltd vs Shobha Yadav on 25 October, 2007
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IN THE COURT OF SH. PADAM KANT SAXENA
ADDITIONAL SESSIONS JUDGE: DELHI
Criminal Revision No. 57/2007
ING Vysya Bank Ltd.
Having its registered office at:
22, M.G. Road, Bangalore -560001
And Retail Banking Division at :
871, East Park Road, Karol Bagh,
New Delhi. .....Petitioner
Vs.
Shobha Yadav
S.G. Enterprises,
WZ-349 A,
G.F. Shop,
Shakur Pur,
New Delhi-110 034 .....Respondent
Date of Institution : 26.09.2007
Date of Final Arguments : 25.10.2007
Judgment reserved on : 25.10.2007
Date of Judgment : 25.10.2007
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JUDGMENT
1. Vide this judgment I shall dispose of the present revision petition which has been filed by the present revisionist impugning order dated 18.8.2007 passed by learned trial Court in complaint case No. 1767/1, whereby the said case filed by it i.e. the petitioner under Sections 138 & 142 of Negotiable Instruments Act, 1881 came to be dismissed.
2. I have heard ld. counsel for the petitioner and have also gone through the records of the present case and those of learned trial court, carefully.
3. Before coming of the merits of the revision petition in question, it may be pointed out that no notice thereof i.e of the present petition was issued to the respondent. The reason of non-issuance of notice to the opposite party is this. In a case where complaint is dismissed in default of appearance during enquiry at pre-summoning stage, notice in revision against such order to accused is not mandatory and the notice would be required only if accused had been discharged 2 Of 10 3 after summoning.( Refer J.K. International Vs. State 2002 IV AD Delhi 211).
4. In the instant case also, the complaint case in question came to be dismissed by learned trial court at the pre-summoning stage itself. In view of the law laid down in the case of J.K. International (Supra), notice of the present revision petition to the respondent/accused is not necessary. Hence no notice was issued to the respondent of the present revision petition.
5. Along with the main revision petition, revisionist had also filed an application dated nil on 25.9.2007 under Section 5 of Limitation Act, 1963 seeking condonation of delay of two days, which according to it, had occurred in filing the instant revision petition.
6. The point that needs to be considered is whether the main revision petition in question came to be filed within the period of limitation prescribed by law or beyong that. The question of consideration of petitioner's prayer for condonation of delay as 3 Of 10 4 contained in its said application would arise if and only if petition came to be filed beyond the period of limitation as provided in the Limitation Act, 1963.
7. The impugned order came to be passed on 18.8.2007 by learned trial court whereas the present petition came to be filed on 25.9.2007. The question is, was the revision petition in fact filed beyond the period of limitation or not.
8. As per Article 131 of the Schedule appended to the Limitation Act, 1963 period of limitation for filing a revision to any Court for the exercise of its powers of revision under the Code of Criminal Procedure or Code of Civil Procedure is ninety days from the date of the decree or order or sentence sought to be revised. Therefore the present revision petition came to be filed much before the expiry of period of ninety days specified in Article 131 of the Limitation Act, 1963. So, on the face of it, it is clear that there was no need for filing the aforesaid application seeking condonation of delay. Be as it may, the said application stands disposed of accordingly.
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9. Now let us consider the legality, correctness and properiety of the impugned order dated 18.08.2007 passed by learned trial court.
10. A perusal of the record of the learned trial Court shows that after the pre-summoning evidence had been led by the petitioner, case was fixed for hearing on 17.8.2007 for clarification. On 17.8.2007 three orders came to be passed by learned trial Court which read as follows:-
"17.08.07(1.10PM) Present: Proxy counsel for the counsel for complainant.
Despite taken time of five minutes, neither main counsel has appeared to make submissions nor any case law produced for which time was taken. Put up for orders at 3.45 P.M. Sd/-
MM/Delhi17.8.07."
"17.08.07 At this stage, Shri Avneesh Saran, counsel for complainant has appeared in the matter of ING Vysya Bank Ltd. This is more than 1.30 PM. He states that he was here at 5 Of 10 6 1:30 PM but he wasn't . He wants to make submissions and to produce case law, however, matter has already been reserved for orders. He had not appeared despite taken time for five minutes. He has stopped me for going to my chamber and states that he has come and I have to hear him. He despite given warning does not resist himself from talking in high pitch and states that it is his 4th generation in this field and he knows how to respect the court but I do not find any respect for court in his conduct. Matter shall be taken up for orders for which it is reserved and since none has turned up to make any arguments and to place any case law, I do not find it fit to succumb to such kind of attitude of the counsel and to depend upon his wishes regarding his appearance in the court.
Sd/-
MM/Delhi17.8.07."
"Present: None.
It is already 4.05 P.M. No time left today. Put up for orders on 18.08.2007.
Sd/-
6 Of 10 7 MM/Delhi17.8.07".
(Underlining is mine to supply emphasis)
11. A perusal of the aforesaid first order sheet dated 17.8.2007 recorded by learned trial Court at 1.10 P.M. reveals that proxy counsel for counsel for the petitioner was present in the court. As observed therein, since counsel for the petitioner could not appear within five minutes as was sought for, case was ordered to be put up 3.45 P.M. for orders. The 2nd order sheet recorded on that very date i.e. 17.8.2007 shows that Shri Avneesh Saran, Counsel for the petitioner had appeared at that time and also wanted to make submissions and show the case laws. However, learned trial Court did not grant an opportunity to the petitioner to do so i.e. for advancement of arguments and instead ordered that the case be put up for orders as directed earlier . The 3rd order sheet recorded on 17.8.2007 reveals that on account of paucity of time, order could not be pronounced on that date at the appointed time. Thereafter on 18.8.2007, the impugned order came to be passed by learned trial Court.
12. The main argument of learned counsel for the petitioner 7 Of 10 8 is that on 17.8.2007 itself, when case was fixed for advancement of clarifications, he had actually appeared before learned trial court for advancement of arguments, then he should have been allowed an opportunity to do so particularly when the complaint case had not been disposed till then and was still pending at that time. Denial of the said right is stated to be a clear violation of principles of natural justice.
13. I find force in the arguments of learned counsel for the petitioner . Had the order disposing of the complaint case in question been passed by learned trial Court before appearance of learned counsel on 17.8.2007, before it, then it might have been a different matter. The aforesaid order sheets recorded by learned trial court on 17.08.2007 and reproduced by me hereinbefore, clearly reflect that before disposal of the case on 18.08.2007 ld. counsel for the petitioner had already appeared before it on 17.08.2007, the date fixed and as such it was in the fitness of things that his arguments i.e. arguments of learned counsel should have been heard before passing an appropriate order. At the cost of repetition, it may be pointed out that in fact the complaint case in question could not be disposed of on 8 Of 10 9 17.8.2007 at 3.45 p.m. as had been earlier ordered by learned trial court on that date on account of paucity of time and impugned order came to be passed only the next day. So in view of the aforesaid facts, I have no manner of doubt that learned trial Court should have at least heard learned counsel for the petitioner before passing an adverse order. Hon'ble Supreme Court in the case of Maneka Gandhi Vs. UOI, AIR 1978 S.C. 597, has held that the principle of audi alteram partem mandates that no one shall be condemned unheard.
14. Therefore, impugned order dated 18.08.2007 in my view is neither correct nor proper and deserves to be set aside.
15. The present petition therefore stands allowed. Impugned order dated 18.8.2007 passed by learned trial Court in complaint case No.1770/1 is set aside. The said complaint case stands restored to its original position. Learned trial Court is directed to dispose of the complaint case in question after giving an opportunity of being heard to the petitioner. Petitioner shall appear before Ld. Trial Court on 2nd November, 2007 for disposal of the case as per law.
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16. Trial court record be returned along with copy of this order. Revision file be consigned to record room. Dictated and announced (PADAM KANT SAXENA) in the open court today ADDITIONAL SESSIONS JUDGE:
i.e. on 25.10.2007 DELHI.
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