Delhi District Court
M/S Cogent Emr Solutions Ltd vs . on 15 July, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0177432011
CR NO:28/2011
M/s COGENT EMR SOLUTIONS LTD.
vs.
M/S PRABHATAM ADVERTISING Pvt. LTD
U/s 138 NI ACT
IN THE MATTER OF
M/s Cogent EMR Solutions Ltd.
E41/4, Okhla Industrial Area,
PhaseII, New Delhi20
&
A7, Sector58, Noida .....Revisionist / Accused
Vs.
M/s Prabhatam Advertising Pvt. Ltd.
Through its Director
Having its Office at Rashtriya Tower,
38,Rani Jhansi road,
New Delhi55. .....Respondent / Complainant
REVISION PETITION U/S 397 Cr.P.C. AGAINST THE IMPUGNED ORDER DATED 07.02.2011 Date of Institution : 21.04.2011 Date of final hearing : 15.07.2011 Date of final order : 15.07.2011 ORDER ON REVISION
1. This revision is preferred against order of Ld. MM dated 7.2.2011 whereby application of revisionist company seeking return of complaint U/s 138 NI Act on account of lack of territorial jurisdiction was dismissed.
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2. I have heard arguments of Ld. Counsel for revisionist / accused Sh. Varun Sharma advocate and have perused the revision file as well as Trial Court Record.
3. Brief facts necessary for disposal of this revision are that respondent / complainant company is in the field of advertisement. Revisionist / accused company was its client . Advertisement assignments were executed by M/s Prabhatam for its clients, M/s Cogent of Rs.44.40 lacs. In part discharge of its financial liability, cheques were drawn by M/s Cogent, accused, in favour of M/s Prabhatam, complainant, but they got dishonoured for the reason 'payment stopped' . No payment was made despite demand notice. Consequently the complaint U/s 138 NI Act was filed wherein M/s Cogent apart from its Director Mr. Santosh Bagla and CEO Mr. Zafar Haq were summoned as accused. A Section 482 Cr.P.C petition seeking the quashing of the complaint was preferred by coaccused Santosh Bagla but it was dismissed by Hon'ble Delhi High Court vide order dated 13.12.2010. Despite issuance of Page 2 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 3 summoning order dated 6.8.08 and above order of Hon'ble High Court , personal appearance was not entered by either of the accused rather their counsels appeared and moved repeated exemption applications successfully on as many as nine consecutive dates of hearing. In the meantime above referred application seeking return of the complaint was moved which was dismissed by LD MM vide impugned order dated 7.2.2011. It is disturbing to observe that in its order dated 16.5.2011, Ld. MM simply adjourned the complaint for proper order even though there no stay was granted by this Court during the pendency of this revision. It has been impressed by Hon'ble High Court, on both the Judicial as well as Administrative Sides that until and unless the Appellate / Revisional Courts stays the proceedings before the Trial Court, Trial Court is not within its rights to stall the proceedings simply because one of its orders is under challenged before a Superior Court.
4. First plea taken by M/s Cogent is that Courts at Delhi have no Page 3 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 4 jurisdiction to try this complaint in so far as M/s Cogent has an office at Noida as well. It is also submitted that the dishonoured cheques were drawn from an account held with M/s Karur Vysya Bank Ltd. at Noida. Perusal of record shows that the 138 NI Act complaint filed by M/s Prabhatam against accused company M/s Cogent is at the accused's address at Okhala Industrial Area in Delhi . Documents including letter heads written to by M/s Cogent to M/s Prabhatan also contains the Okhla address. Not only the legal demand notice but also the Court summon were served on accused company M/s Cogent and its officials at Delhi address. Despite this while filing this revision petition , Ld. Counsel for M/s Cogent changed their address in the memo of parties from Okhla to Noida without any justifiable reason. This is a deliberate act apparently done in order to corroborate the plea that they have an office at Noida. On the very first date , when this revision was assigned to this Court i.e. on 21.4.2011 a query in this regard was made, and an undertaking was given by Ld. Counsel for revisionist / Page 4 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 5 accused to place on record the document to show as to where their registered office, as per Registrar of Company Record, is situated.
th Today is the 7 date of hearing on revision and no document as undertaken has been placed. On an oral query , initially it was claimed by Ld. Counsel for revisionist that registered office of M/s Cogent is at Rohtak but upon being asked to substantiate this plea, it was conceded that registered office of the Revisionist is at Okhala , Delhi. Even in the written ground and synopsis submitted before this court, the very first para concedes that revisionist has address at Okhala, Delhi. During the course of hearing a surprising stance was taken by the Ld. Counsel for revisionist that this court can not pose queries or seek document qua registered office of the revisionist. A strong objection is taken on this demenour of LD. Counsel in so far as the necessity to raise the query arose because the revisionist tried to mislead the Court on the facts by clandestinely changing the address in the memo of parties from Okhala, Delhi to Noida, UP.
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5. The shoddy attempts on the part of revisionist company and its Ld. Counsel does not stop. In the last line of page 2 of written synopsis, it has been written "that the bank of the complainant is also situated at Noida." Upon being pointed out and asked to explain, Ld. Counsel was dumb struck and had to concede that it is a factually incorrect statement on their parts , in so far as not only M/s Prabhatam is located at Delhi but their Banker M/s Yes Bank is located at South ExII, Delhi. It is not expected of a lawyer , who is also an officer of the court to mislead the Court on facts with an aim to try and procure a favorable order for their clients and that too at the cost of eroding the faith of Court over the Bar.
6. Another objectionable conduct of Ld. Counsel is in the manner in which the Revision Petition has been drafted in so far as in its 21 pages text , almost 19 pages are case laws and precedents which have been simply copied and pasted . Not only this has made the entire lis unnecessarily bulky, but since an identical font has been used at most of the places, it was a herculean task for this court to Page 6 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 7 identify the facts and merits of this revision from quoted text of the precedents. Even though this Court requested LD. Counsel to segregate the quoted text of the judgments cited from the merits of the revision, an unsigned 17 pages synopsis apart form 10 pages undated, unsigned additional text was placed on record .
7. Coming to the merits of the plea that Ld. MM at Delhi has no territorial jurisdiction to try the complaint, undisputed facts as available on record, are that complainant M/s Prabhatam is located at Delhi . Dishonoured cheques were received by the complainant from the revisionist / accused company at Delhi as per complaint. The cheques were presented by the complainant with their banker at Delhi . The dishonour memo purportedly issued by the bankers of accused has been so issued by their CCO office at Karol Bagh, Delhi. Legal demand notice was not only issued from Delhi but was also served upon the accused at Delhi. Despite this strong reliance has been placed by Ld. Counsel for revisionist on case titled Harman Electronics Pvt. Ltd. Vs. National Panasonic India Pvt. Ltd Page 7 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 8 (2009)I, SCC 720, and certain other judgments which are based on this case law. Close scrutiny of the facts of the cited case shows that it is totally distinguishable on facts and not even close to the case in hand in so far as in the cited case not only the accused was from Chandigarh but also the cheque was drawn at Chandigarh, complainant too had a branch office at Chandigarh, cheque was presented at Chandigarh, cheque bounced at Chandigarh and demand notice was issued to the accused at Chandigarh. In the cited case the only reason why the case was filed in Delhi, was that the demand notice was issued from Delhi. Since a complaint was filed under the wrong understanding of K.Bhaskaran's Case , Hon'ble Supreme Court in Harman's case rightly ruled that the Court of proper jurisdiction under above circumstances shall be Chandigarh. However, in the case in hand not only the complainant but the accused company are based in Delhi, the cheque was presented and dishonored at Delhi apart from the fact that the legal notice was issued from Delhi and served on accused Page 8 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 9 at Delhi.
8. Similarly, the reference to Delhi Legal Service Committee Writ Petition WP (c) 11911/2009 dated 23.09.09 is also out of context in so far as this judgment applies to only those cases which do not have territorial jurisdiction in Delhi, unlike the case in hand. Admittedly above DB order of Hon'ble Delhi High Court stands stayed by Hon'ble Supreme Court in JA (1) in 15974/2009 vide order dated 3.11.2009 by a status quo order. Despite this it is astonishing to observe that revisionist company through its counsel moved an application before Ld. MM seeking compliance of stayed Division Bench order of Hon'ble Delhi High Court despite being fully aware that full Court of Hon'ble Supreme Court has already passed a stay over it. Upon being asked as to why an endeavor was made to mislead Ld. MM, by asking him to comply a order which has been stayed by Hon'ble Supreme Court. It is a stated before this Court that order of Hon'ble Supreme Court was brought in the notice of LD. MM as well. I find this plea of LD. Counsel to be Page 9 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 10 a yet again false statement, in so far as neither there is any mention of stay order of Hon'ble Supreme Court in the application moved before LD. MM nor copy of the order was filed along with the same. This act and conduct of the revisionist company done through their counsels hinges on the brink of contempt of court and is highly objectionable and deplorable in strongest words .
9. Another highly objectionable act and conduct of Ld. Counsel for revisionist is that of burdening of this Court's record by placing in the Revision Petition photocopies of several orders passed by LD. Magistrate in matters which are not even remotely connected with the revision in in hand. Even a novice in the legal profession is aware of law of precedent and sanctity of Judicial Hierarchy. It is not expected of a lawyer who claims to be member of the bar for around two decades that he is quoting and relying the orders of Ld. Magistrates in a Superior Court. This kind of practice needs to be stopped at all cost . Sanctity of judicial time and proceedings has to be maintained by the Bar. I find absolutely no substance in the Page 10 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 11 plea that the chamber of Ld. Counsel has compiled a booklet of judgments and they routinely file the whole set of judgments in every Court. This is indicative of mechanical way of functioning without appreciating the relevance of a judgment or its judicial bindingness .
10.Another plea taken in this revision is that since address of accused M/s Cogent is at Okhla, courts of Central District have no jurisdiction to entertain the complaint. On this score Ld. MM has rightly observed that as per Section 16 of Cr.P.C. every Metropolitan Magistrate has power over the entire Metropolitan area.
11. Section 16 of Cr.P.C runs as under:
Courts of Metropolitan Magistrates: (1) In every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification specify.
(2)The Presiding Officers of such Courts shall be appointed by the High Court .
(3)The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan Page 11 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 12 area.
12.Delhi is still one Metropolitan Area having one Sessions Judge and one Chief Metropolitan Magistrate having unfettered jurisdiction over the entire single undivided Metropolitan District. As such it can not be said that a MM administratively posted at Central District has no jurisdiction to entertain this case. Further more, complainant is located under PS Paharaganj which is duly covered under Central District in so far as per complaint , cheques were delivered to them at Delhi by the accused company . In 120 (2005) DLB 205, the issue of Delhi being a single metropolitan area was neither raised nor discussed. The cited order was passed since an endeavor was made to give rise to cause of action only on the basis of issuance of demand notice.
13.Another plea taken is that impugned order is a non speaking one. Plain reading of the impugned order shows that it is not so taken.
14.For the foregoing reasons , I find that not only this revision is hopelessly merit less but the tactics adopted therein smacks of Page 12 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 13 serious abuse of judicial process. Pleading of false factual pleas , seeking compliance of a judgment despite it being stayed by Hon'ble Supreme Court shows that least regard has been shown to the sanctity of the judicial process.
15.In case titled Surya Parkash Tyagi Vs. Lt. Governor of Delhi 2009 (160) DLT 42, Division Bench of Hon'ble High Court observed:
" The petitioner is also guilty of making false averments and allegations in the Writ Petition. The petitioner has clearly not approached this court with clean hands and has not stated the correct facts ................. the conduct of the petitioner is resorting to the aforesaid misstatements, false averments and suppression of material facts is gross abuse of the process of court. A person who makes false averements and does not come to the court with clean hands is liable to be thrown out at the threshold and appropriate action initiated against him in accordance with law. The present petition is clearly motivated by private malice and vested interest. The writ is liable to be rejected at the threshold with exemplary cost.
16.In case titled S.P.Chengalvaraya Naidu (Dead) by LRs Vs. Page 13 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 14 Jaganath (Dead) LRs and ors. AIR 1984 SC 853, Hon'ble Supreme Court observed :
"Fraud - avoids all judicial acts , ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law. Such a judgment / decree by the first Court or by the Highest Court - has to be treated as a nullity by every court , whether superior or inferior. It can be challenged in any court even in collateral proceedings."
" The Courts of Law are meant for imparting justice between the parties. One who comes to the court , must come with clean hands. We are constrained to say that more often then not, process of the court is being abused . Property - grabbers taxevaders, bankloandodgers and other unscrupulous persons from all walks of life find the court process a convenient level to retain the illegal gains indefinitely. We have no hesitation that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of litigation."
17.In case titled "C.B. Aggarwal Vs. P. Krishna Kapoor" AIR 1995 Delhi 154 Hon'ble High Court observed, "It is true that in a civilised society, legal process is Page 14 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages 15 the machinery for keeping order and doing justice. It can be used properly or it can be used. It is used properly when it is invoked for vindication for men's right an enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end."
18.In the light of peculiar facts and the above case laws the revision petition is dismissed with the cost of Rs.10,000/ which shall be deposited with Delhi Legal Service Authority within two weeks . Revision stands disposed off . Revision file be consigned to RR. TCR be sent back with direction to expedite the proceeding since during the last three years accused have succeeded in stalling the trial by not entering into appearance which is a clear violation of statutory provision & case laws which requires Ld. MM to try & dispose off 138 NI Act matter within six months. Ld. MM to ensure that cost imposed is deposited by revisionist / accused with Delhi Legal Service Authority.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 15.07.2011 (SURINDER S. RATHI) Addl. Sessions Judge02:Central : Delhi Page 15 of Revision M/s Cogent .... Vs. M/s Prabhatam ..... of 15 pages