Delhi District Court
Gautam Tyagi vs . Avnish @ Amrish Tyagi on 26 June, 2012
1
IN THE COURT OF MS. NAVITA KUMARI BAGHA, MM, NEW DELHI
CC No.108/3/10
Gautam Tyagi, Advocate
S/o Sh. Ramnath Tyagi
Seat No. 864 B.S. Mehta Squire,
Patiala House Court,
New Delhi110001.
Also at
R/o H. No. 478, Niti Khand,
Indirapuram, Ghaziabad.
........... Complainant
Versus
1. Avnish @ Amrish Tyagi
R/o H. No. 9/48, Sector3,
Rajender Nagar, Sahibabad,
Ghaziabad, U.P.
2. Dayal Tex Print,
Through its Proprietor Avnish@ Amrish Tyagi
Gali No. 4, Plot No. 47, Rajender Nagar Industrial Area,
Behinid MMX Mall, Sahibabad,
Ghaziabad, U.P.
............. Accused
Complaint U/Sec.138/141 r.w. Sec.142 Negotiable Instruments Act
ORDER:
1. Vide this order I shall dispose of the two applications of the accused dated 09.04.2012 filed U/Sec. 311 Cr.P.C. and U/Sec.315 Cr.P.C.
2. In these two applications the accused has stated that the wife of the CC No.108/3/10 Gautam Tyagi Vs. Avnish @ Amrish Tyagi 2 complainant i.e. Nishi Tyagi had worked with the accused as associate partner from 2009 to 2010 and knows all the true facts of the present case. He has further stated that complainant's wife was signatory in the bank of the accused and had thereby misused the entire cheque book of the accused consisting of 24 cheques. He has further stated that his son Deepak Tyagi, who is alleged by complainant to have signed some documents, was never associated with the accused in his business but he knows all the facts regarding the case and therefore, he wants to examine Deepak Tyagi and Nishi Tyagi alongwith him in his defence evidence.
3. In reply to these two applications, the complainant has stated that accused is deliberately trying to prolong the trial of the case by adopting delay tactics. He has further submitted that accused's application U/Sec.145(2) N.I. Act is already dismissed vide order dated 03.03.2012 on the ground that the story of the accused is concocted, unbelievable and without any substance. He has further stated that though in application U/Sec.145(2) N.I. Act, the accused had denied to be relative of complainant, but in his statement U/Sec.313 Cr.P.C., recorded in the Court of Ms. Bhavna Kalia. Ld. MM, he admitted himself to be relative of complainant. He further stated that though the accused has stated in his application U/Sec.145(2) N.I. Act that the wife of the complainant was his partner but he has not placed on record any document of partnership between the two. He has further submitted that the Dayal Tex is not infact any partnership firm rather it is a sole proprietary concern of accused Avinash @ Amrish Tyagi. He has further stated that on the one hand, the accused has denied of having taken any money from the complainant but on the other hand CC No.108/3/10 Gautam Tyagi Vs. Avnish @ Amrish Tyagi 3 in his statement U/Sec.313 Cr.P.C. recorded in the Court of Ms. Bhavna Kalia, Ld. MM he admitted of having received Rs.25 lacs from the complainant. He has further submitted that though the accused was having knowledge of dishonouring of the cheques in question when on 24.09.2010 he had written to the bank for cancellation of signing authority of Nishi Tyagi, but he neither lodged any complaint of theft or misappropriation of cheques with the police nor instructed for stoppage of cheques to the bank. He has further stated that accused had admitted and acknowledged the amount of complainant in the presence of Anil Tyagi and Deepak Tyagi on 13.09.09 and accordingly, issued 24 postdated cheques towards the payment of complainant's money. He further stated that the alleged vouchers filed by the accused are false, forged and fabricated and that is why the accused had never made reference about these vouchers earlier and also did not mention about the same in reply to the legal notice issued by the complainant. He further stated that the accused has also not filed on record any statement of bank or balance sheet of his firm Dayal Tex Print of the year 200708, 200809, 200910 for corroborating the alleged payment by him to the complainant through alleged vouchers.
4. I have heard the arguments from counsel Sh. O.N. Sharma for complainant and counsel Sh. Naveen Goel for accused and perused the record. After framing of notice U/Sec.251 Cr.P.C., the accused was granted opportunities for leading his defence evidence but he failed to do so. When despite grant of last opportunity vide order dated 22.11.2010, the accused failed to lead any evidence in his defence, his DE was closed vide order dated 12.12.2010 and the matter was adjourned for 27.01.2011 for final arguments. But on 27.01.2011 the accused CC No.108/3/10 Gautam Tyagi Vs. Avnish @ Amrish Tyagi 4 moved application U/Sec.145(2) N.I. Act which was dismissed by this Court vide detailed order dated 03.03.2012 and the matter was adjourned for 09.04.2012 for final arguments. But instead of addressing final arguments on the said date, the accused moved the present two applications. Though the opportunities were given to the accused for leading evidence which he failed to avail, but no explanation has been given in these applications U/Sec.311 Cr.P.C. and U/Sec. 315 Cr.P.C. for not leading evidence at that time. The accused has simply stated in these applications that he wants to examine himself, Nishi Tyagi and Deepak Tyagi as they know the true facts of the case. But it is settled law that the application U/Sec.311 Cr.P.C. could not be moved in routine and casual manner, once the evidence is closed, without explaining the reasons for not leading evidence when the opportunity for the same was given. The application was moved when the matter was fixed for the second time for final arguments (as on the previous occasion the accused had moved application U/Sec.145(2) N.I. Act) and that too without disclosing any reasonable justification for not leading the evidence at the relevant time. Therefore, the same deserves dismissal. Moreover, vide order dated 03.03.2011, it has already been held that the story presented by the accused regarding issuance of vouchers, complainant's wife being his partner, etc., appears to be concocted one, unbelievable and without any substance. It is pertinent to mention here that the accused has not till date denied the acknowledgment and undertaking dated 11.08.09 and settlement dated 13.08.2009 whereby he had agreed in the presence of relatives of both the parties to make payment of complainant's dues of Rs. 46,50,000/ and handed over 24 postdated cheques of Rs. 1,93,750/ each. Though, he had stated that in his application U/Sec.145 N.I. CC No.108/3/10 Gautam Tyagi Vs. Avnish @ Amrish Tyagi 5 Act that the complainant had created a false story of loan as well as relationship to extort money from him, but in his statement recorded in the Court of Ms. Bhavna Kalia, Ld. MM, he has categorically admitted that he had taken financial assistance of approximately Rs.25 lacs from the complainant and further that the wife of the complainant was in his relation. It is also pertinent to mention here that in his application U/Sec.145 N.I. Act the accused had stated complainant's wife to be his partner and had sought time from this Court to file documentary proof of the same but he failed to file the same and now again he has alleged in the present application that complainant's wife is his partner. But during the arguments he admitted that she is not partner as the Dayal Tex Print is not partnership firm rather it is a proprietary concern of which he is the sole proprietor. He has alleged that the complainant's wife had misused 24 cheques from his cheque book as she was a signing authority in his bank account, but if that was so, then why he never lodged any police complaint regarding misappropriation or theft against her for the same? Thus it is apparent that the accused has been making false and contradictory statements. The counsel for complainant argued that the alleged vouchers, the copies of which have been filed by the accused on record, are forged and fabricated and result of afterthought and that is why neither the accused ever made reference to these vouchers earlier nor mentioned about the same in the reply to the legal notice issued by the complainant. He has further argued that these vouchers are manifestly not genuine as these do not bear the name of the accused firm nor bear serial number nor stamp of the accused nor give reasons of making the payment or that who had approved the payment of the money or who had signed these vouchers on behalf of the accused firm. I find force in this CC No.108/3/10 Gautam Tyagi Vs. Avnish @ Amrish Tyagi 6 contention and agree with his viewpoint. From all this, it is clear that the accused has not kept one stand and has been changing his version continuously. The record of the case reveals that the accused has been trying to prolong the present case on one or the other ground though the case U/Sec. 138 N.I. Act is of summary trial nature. So, in view of the abovesaid, the applications of accused U/Sec.311 Cr.P.C. and U/Sec.315 Cr.P.C. are dismissed with cost of Rs.2,000/ to be paid to complainant and last opportunity is given for final arguments for 25.07.2012.
(Announced in open
Court on 26.06.2012) (Navita Kumari)
MM/New Delhi
CC No.108/3/10
Gautam Tyagi Vs. Avnish @ Amrish Tyagi
7
CC No.108/3/10
26.06.12
Present : Sh. O.N. Sharma, counsel for complainant.
Accused with proxy counsel Sh. Sanjiv Gupta.
Vide separate order the applications of accused U/Sec.311 Cr.P.C. and U/Sec. 315 Cr.P.C. are dismissed with cost of Rs.2,000/, to be paid to complainant and last opportunity is given for final arguments for 25.07.2012.
(Navita Kumari) MM/ND/26.06.12 CC No.108/3/10 Gautam Tyagi Vs. Avnish @ Amrish Tyagi