Delhi District Court
Deepak Muradiya vs . Rajender Paswan on 12 December, 2018
Deepak Muradiya Vs. Rajender Paswan
CR No: 430/2018
IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE,
(PC ACT) CBI-I ,DWARKA COURTS; NEW DELHI.
Deepak Muradiya
S/o Sh. Sarwan Muradiya
R/o A-54-55, Sahog Vihar
J.J. Colony, Uttam Nagar
New Delhi.
...... Revisionist
VERSUS
Rajender Paswan
S/o Sh. Ram Abhilash Paswan
R/o D-103, Sahyog Vihar, J.J. Colony
New Delhi- 110059.
.......Respondent
CR No. 430/2018
Date of Institution 20.10.2018
Reserved for orders on 10.12.2018
Judgment announced on 12.12.2018
JUDGMENT
1. This revision petition under Section 397 r/w Section 399 Cr.P.C. is directed against the order dated 29.09.2018 passed by Ld. MM (NI Act)-02/SW/ Dwarka Courts, New Delhi whereby Ld. MM has been pleased to close the right CR No: 430/2018 Page 1 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 of the accused (revisionist herein) to further cross examine the complainant (respondent herein). Briefly stated facts relevant for the disposal of the revision petition are as under:
2. The aforesaid revision petition arises out of complaint case no. 4996147/2016 under Sections 138 of the Negotiable Instrument Act, titled as Rajender Paswan Vs. Deepak Muradiya filed by the complainant Rajender Paswan (respondent herein) stating therein that complainant is doing the business of selling building material and on 21.03.2014 the accused no. 2 i.e. the mother of the revisionist contacted the complainant for purchasing the building material for construction of her house bearing no. 54-55, Sahyog Vihar, Uttam Nagar, New Delhi and on the assurance of accused no. 2, the complainant got ready to give the building material to accused no. 1 ( revisionist herein). It is further stated in the complaint that both the accused persons contacted the complainant on various dates for purchasing the building material for a total sum of Rs. 3,50,000/- and in this regard accused no. 1 (revisionist ) paid a sum of Rs.
1,50,000/- to the complainant in cash and promised the complainant of clearing the balance amount as soon as possible but did not pay the same. It is stated in the complaint that in order to discharge his liability, the accused (revisionist herein) issued a Cheque bearing no.
CR No: 430/2018 Page 2 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 230453 dated 14.03.2016 for a sum of Rs. Two lacs drawn on State Bank of India in favour of the complainant with the assurance that the same will be honoured on presentation for encashment. It is stated that when the complainant presented the said cheque with his banker for encashment, the same was returned dishonoured vide memo dated 17.03.2016 with remarks "funds insufficient". It is further stated in the complaint that after dishonour of cheque, complainant contacted the accused persons and requested them to make the payment of cheque amount in cash but the accused person never paid any heed. It is further stated in the complaint that thereafter complainant sent a legal demand notice dated 12.04.2016 to the accused persons through registered AD which was duly served upon the accused persons on 18.04.2016 but the accused persons failed to discharge their liability. Thereafter the complainant filed the aforesaid complaint case under Section 138 of Negotiable Instrument Act against the accused No. 1 (revisionist herein) and accused no. 2 ( mother of the revisionist).
3. In the pre summoning evidence, the complainant examined himself as CW1 and closed his pre-summoning evidence on 04.07.2016. Vide order dated 04.07.2016, the name of accused no. 2 Smt. Fhoola has been deleted from the array of parties on the statement of complainant and case against accused no. 2 namely Fhoola stands CR No: 430/2018 Page 3 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 dismissed as withdrawn. The accused No. 1 ( revisionist ) was summoned and notice under Section 251 Cr.P.C. was framed against the accused on 16.02.2017 to which accused pleaded not guilty and claimed trial. Thereafter an application dated 06.05.2017 under Section 145(2) NI Act for re-examination the complainant was filed by accused which was allowed by Ld. Trial Court vide order dated 22.05.2017 and the case was fixed for CE and thereafter on 24.02.2018 complainant examined himself as CW1 and adopted his pre summoning evidence as his post summoning evidence and was cross examined in part and his further cross examination was deferred and case was fixed for further cross examination of complainant on 16.04.2018 and Vide order dated 16.04.2018 the right to cross examine the complainant was closed and case was fixed for Statement of accused on 26.05.2018. On 26.05.2018 accused filed an application under Section 311 Cr.P.C. for cross examination of complainant which was allowed vide order dated 23.07.2018 subject to cost of Rs. 1000/- to be paid to the complainant and case was fixed for 25.08.2018 for cross examination of the complainant. Thereafter vide order dated 29.09.2018, the right of the accused to further cross examine the complainant was closed .
4. Aggrieved by the impugned order dated 29.09.2018 by which Ld. Trial Court has been pleased to CR No: 430/2018 Page 4 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 close the right of the accused, the revisionist has filed the present revision petition stating therein that impugned order has been passed on the basis of conjectures and surmises and without appreciating the facts and the law. It is stated in the revision petition that Ld. Trial Court without appreciating the facts and circumstances of the non-availability of the Ld. Counsel of the revisionist and in a haste manner, closed the right of the revisionist to further cross examine the respondent. It is stated that on 29.09.2018 revisionist had appeared along with proxy counsel before Ld. Trial Court and sought pass over for 2 PM as the main counsel for the revisionist was held up in Rohini Court in a case titled as Anil Aneja Vs. Rajiv Kumar Aneja for addressing arguments and also in case State Vs. S.K. Mathur but the Ld. Trial Court granted the pass over of the matter till 1 PM. It is stated that ld. Counsel for the revisionist was held up due to the bonafide reason and could not manage to reach before lunch and even though his associate counsel Sh. R.K. Solanki was very much ready to cross examine the complainant without any objection of the accused but Ld. Trial Court was pleased to dismiss the prayer of the associate counsel to cross examine the complainant and closed the right of the revisionist to further cross examine the respondent. Ld. Counsel for the revisionist has prayed for setting aside the impugned order dated 29.09.2018.
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5. I have heard Ld. Counsels for the parties and perused the records.
6. The contention of Ld. Counsel for the revisionist is that on 29.09.2018 the revisionist had appeared along with proxy counsel before Ld. Trial Court and sought pass over for 2 PM as the main counsel for the revisionist was held in Rohini Court in a case titled as Anil Aneja Vs. Rajiv Kumar Aneja for addressing arguments and also in case State Vs. S.K. Mathur but the Ld. Trial Court granted the pass over till 1 PM. It is further contended that main counsel for the revisionist could not reach before lunch and even though his associate counsel Sh. R.K. Solanki was very much ready to cross examine the complainant without any objection of the accused but Ld. Trial Court was pleased to dismiss the prayer of the associate counsel to cross examine the complainant and closed the right of the revisionist.
7. Ld. Counsel for the respondent has contended that the accused was given several opportunities to cross examine the complainant(respondent herein) but he kept on delaying the matter on one pretext or other and the revision petition has also been filed to delay the matter. Ld. Counsel for the respondent also contended that date to cross examine the complainant was given as per convenience of Ld. Counsel for the revisionist. Ld. Counsel for the respondent has contended that in case the accused CR No: 430/2018 Page 6 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 is given further opportunity, the same would cause prejudice to him and would further delay the matter as the accused has already succeeded in delaying the matter.
8. It is contended that the revision petition is not maintainable as the impugned order is an interlocutory order.
9. In Sethuraman Vs. Rajamanickam, Criminal Appeal No. 486-487 of 2009, wherein Hon'ble Supreme Court was pleased to hold:
2. In these appeals, the common order passed by the Learned Single Judge of the Madras High Court in three Criminal Revisions, is in challenge. By the instant order, the Learned Single Judge set aside the three orders passed by the Trial Court dated 26.07.2004 in Crl.M.P. No. 3057 of 2004 in C.C. No. 216 of 2003 and dated 1.4.2004 in Crl.M.P. Nos. 4184 and 4185 of 2004 in C.C. No. 215 of 2003, and allowed those Crl.M.Ps. Shortly stated, the appellant herein had filed a criminal complainant under Section 200 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short), complaining therein that a cheque signed by the respondent and given for returning the amount of Rs.2Lakhs, which was a loan, was bounced and inspite of the notice given CR No: 430/2018 Page 7 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 thereafter, the accused (respondent herein) had failed to return the money. A Trial ensued on the basis of this complaint and the complainant (appellant herein) was examined as a first witness for the prosecution on 24.8.2004. He was cross-examined also. On 20.09.2004, the respondent herein filed applications under Section 91 Cr.P.C. and Section 311 Cr.P.C., seeking directions to produce the Bank Pass Books, Income Tax Accounts and the L.D.S. deposit receipts of the appellant, as also for recalling him for cross-examination. This was objected to by a Reply dated 24.9.2004. The Court passed an order on 1.10.2004, rejecting the applications made by the respondent/accused. The respondent/accused filed Criminal Revisions before the High Court under Section 397 Cr.P.C. and the High Court, by the impugned common order, proceeded to allow the same. It is this order, which has fallen for consideration before us in these appeals.
4. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had CR No: 430/2018 Page 8 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.
10. Section 397(2) of The Code of Criminal Procedure, 1973 reads as under:
Section 397: Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local CR No: 430/2018 Page 9 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, any may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section
398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) XXXXXXXXXXX
11. In Amar Nath and others v. State of Haryana and others, AIR 1977 Supreme Court 2185, Hon'ble Supreme Court was pleased to hold:
6. Let us now proceed to interpret the CR No: 430/2018 Page 10 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 provisions of S. 397 against the historical background of these facts. Sub-section (2) of S. 397 of the 1973 Code may be extracted thus:
"The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-s (2) of S. 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision.
Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It CR No: 430/2018 Page 11 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 seems to us that the term "interlocutory order" in S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against the order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.
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12. In Madhu Limaye v. State of Maharashtra AIR 1978 Supreme Court 47, Hon'ble Supreme Court was pleased to hold:
10. As pointed out in Amar Nath's case (AIR 1977 SC 2185) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397.
13. In V. C. Shukla v. State through C.B.I., AIR 1980 Supreme Court 962, Hon'ble Supreme Court was pleased to hold:
'It will be important to note that the words 'interlocutory order' used in this sub-section relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding. The object seems to be to cut-down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it has got a wide and diverse area of jurisdiction inasmuch as it CR No: 430/2018 Page 13 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 regulates the procedure of trial not only of the large number of offences contained in the Indian Penal Code but also in other Acts and statutes which apply the Code of Criminal Procedure or which are statutes in pari materia the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. Fortunately, however, there are a few decisions which have interpreted the expression 'interlocutory order' as appearing in S. 397 (2) of the Code.
14. In Neelam Mahajan & Anr. Vs. State & Ors., MANU/DE/0871/2016, Hon'ble High Court of Delhi has given guidance for making a distinction between interlocutory order and final order. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra) , Hon'ble High Court has referred to decision in V. C. Shukla v. State through C.B.I. and has been pleased to observe:
17. In V.C. Shukla v. State through CBI, 1999 SCC ( Cri) 393, the following propositions were laid:
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
CR No: 430/2018 Page 14 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 (2)that the concept of interlocutory order has to be explained, in contradistinction to a final oder. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an oder passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy CR No: 430/2018 Page 15 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order, framing charges, the Act works serious injustice to the accused.
15. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra), Hon'ble High Court has been pleased to observe:
18. Applying these tests to the impugned order, this Court finds that the order permitting the re-
examination of the petitioners is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. Furthermore, it is impossible to spell out the concept of an interlocutory order unless it is understood in contradistinction to or in contrast with a final order.
16. In Varun Aggarwal Vs. State of NCT of Delhi & Anr. , Crl. M.C. No. 2424/2017, Hon'ble High Court of Delhi has been pleased to hold:
1. By way of the present petition filed under Section 482 of The Code of Criminal Procedure, 1973 (hereinafter referred 'Cr.P.C.') the petitioner seeks setting aside of CR No: 430/2018 Page 16 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 order dated 19.12.2016 in Criminal Complaint No. 4998501/2016, passed by the Metropolitan Magistrate (hereinafter referred as 'MM'), Dwarka Courts, and also order dated 13.04.2017 passed by the Additional Session Judge (hereinafter referred 'ASJ') in Criminal Revision No. 120/2017.
2. The brief facts of the present case are that the complainant lodged a complaint against the petitioner, wherein it was alleged that the petitioner had taken loan from the complainant at the interest rate of 12% p.a, which is to be repaid by him within a period of one year.
On the expiry of the aforesaid period, he approached the petitioner for return of money in lieu of which the petitioner issued a post dated cheque bearing no. 858476 dated 25.05.2012. On 26.05.2012, when the cheque was presented for encashment in the bank, the same was dishonored. Therefore, the complainant lodged the complaint under Section 138 Negotiable Instrument Act,1881 against the petitioner. During trial, the concerned court allowed the plea of the petitioner/accused vide order dated 12.05.2016, to place on record the FSL report of the alleged conversation with the complainant along with the transcript. However, vide order dated 19.12.2016, the petitioner could not file the Forensic report, on account of which the court closed the right of the petitioner for the examination of the Forensic Expert. The said order was challenged by the petitioner through a Criminal Revision No. 120/2017, before the Special Judge, Dwarka, who dismissed the same on the ground of maintainability of the said revision under CR No: 430/2018 Page 17 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 Section 397(2). Hence, the present petition. Xxxxxxxxxx xxxxxxxxxx
8. The petitioner, then, filed a Criminal Revision No. 120/2017 against the order dated 19.12.2016, 09.01.2017 and 18.01.2017, and the order of the said Revision court was pronounced on 13.04.2016 wherein the same was rejected by the learned ASJ on the pretext that: "In view of the decision in Neelam Mahajan & anr. vs state & Ors. , Manu/DE/0871/2016, there is no force in the contention of revisionist that impugned order is not an interlocutory order merely because it disposes of an important aspect of the course of proceedings. Consequently, the revision petition thereby praying for allowing the revisionist to bring on record the Forensic Expert Report and for examining the expert as a defence witness is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed."
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10. As far as order dated 13.04.2017 passed by the learned ASJ is concerned, it is rightly viewed by the said court that order dated 19.12.2016, 09.01.2017 and 18.01.2017 setting aside the revision petition being interlocutory in nature and the same cannot be challenged in a revision petition and is liable to be set aside as per the settled proposition of law in that regard.
17. In view of the decisions in Neelam Mahajan & Anr. Vs. State & Ors. (Supra) and Varun Aggarwal Vs. State of NCT of Delhi & Anr. ( supra), the revision petition is not maintainable as the impugned order is an CR No: 430/2018 Page 18 of 19 D.O.J. 12.12.2018 Deepak Muradiya Vs. Rajender Paswan CR No: 430/2018 interlocutory order. Consequently, the revision petition thereby praying for further cross examination of complainant/CW1 is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed.
18. Revision File be consigned to record room.
19. A copy of this judgment be sent to Trial Court for information.
Announced in the open (HARISH DUDANI) Court on 12.12.2018 Special Judge,( PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed by HARISH HARISH DUDANI
DUDANI Date: 2018.12.12
15:38:13 +0530
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