Delhi District Court
Ajay Kanodia vs . on 9 May, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0211012012
CR NO: 71/2012
CC NO: 4609/2010
PS PATEL NAGAR
AJAY KANODIA
vs.
CHANDRA LAXMI CHIT FUND PVT. LTD
U/s 138 NI ACT
IN THE MATTER OF
Ajay Kanodia
M/s Kanodia Hosiery Mills
R/o 4/2, Second Floor
Roop Nagar, Delhi7. ............ Revisionist / Accused
Vs.
M/s Chandra Lakshmi Chit Fund Pvt. Ltd.
106, A1, A2, Satya Manison,
Ranjit Nagar, New Delhi. ........... Respondent/Complainant
Revision against the impugned order dated 28.4.2012 Date of Institution : 9.5.2012 Date of final hearing : 9.5.2012 Date of final order : 9.5.2012 ORDER ON REVISION
1. This revision has been preferred by accused / revisionist against order of Ld. Magistrate dated 28.4.2012 whereby cost of Rs.3000/ was imposed when adjournment was sought by the accused / revisionist.
2. I have heard arguments of Ld. Counsel Sh. R.K.Jain, Advocate for revisionist / accused and have perused the revision file.
3. Brief background of the matter is that a Section 138 NI Act complaint was preferred by Page 1 / 7 of Order on Revision -Ajay Kanodia - Chandra Laxmi dt 9.5.2012 2 respondent company against the revisionist accused after a cheque allegedly issued by the accused for around Rs.4.46 lacs was dishonoured on presentation for insufficiency of funds. When no payment was made by the revisionist despite issuance of legal demand notice, the respondent company was constrained to prefer a Section 138 NI Act complaint wherein Revisionist was summoned as accused.
4. During the course of trial on 28.4.2012 when Ld. Defence Counsel for revisionist did not appear in the Court despite seeking pass over, Ld. Magistrate was constrained to impose a cost of Rs.3000/ on the revisionist / accused with the direction to deposit the same with DLSA. Aggrieved by this order, accused preferred Revision in hand.
5. At the onset it is observed that the impugned order is per se an Interlocutory Order as mentioned Section 397 (2) Cr.P.C. The Law on Interlocutory Order is well settled.
6. The expression interlocutory order has neither been defined in Cr. P.C. nor in any other Code.
7. In book Corpus Juris Secundum, Vol. 47 Page 85 the term "interlocutory order" has been defined as "something intervening between commencement at the end of a suit which decides some point or matter but which is not a final decision of the whole controversy".
8. The Webster's Third International Dictionary defines: The expression "interlocutory" as " not final or definite; made or done during the progress of an action, intermediate, provisional".
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9. Halsbury's Law of England Volume 22 of the Third Edition at Page 743744 describes "Interlocutory and Final Order" thus: " An order which does not deal with the final rights of the parties, but either
(i) is made before judgment, and gives no final decision on the matter and dispute but is merely on a matter of procedure or
(ii) is made after judgment and merely directs however declarations of right already given in the final judgment are to be worked out is termed " interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.
(iii) an Interlocutory Order, though, not conclusive of the main dispute, may be conclusive has to be subordinate matter with which it deals."
Final judgments are such as to once put an end to the action by declaring that the plaintiff has either entitled himself. or has not, to recover the remedy he sues for. Four different tests for ascertaining the finality of a judgment or order have been suggested :(1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute; (2) Was it made upon an application upon which the main dispute could have been decided;
(3) Does the order, as made, determine the dispute; (4) If the order in question is reversed, would the action have to go on."
10.What constitutes an interlocutory order, a test has been laid down in S. Kappuswami Rao Vs. The King, AIR 1949 F.C. 1. It was stated :
" To constitute a final order, it is not sufficient merely to decide an important or even vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way."
11. In case titled Amarnath & Ors Vs. State of Haryana, AIR 1977 SC 2185 , while discussing the term "interlocutory order", Hon'ble Supreme Court ruled that Page 3 / 7 of Order on Revision -Ajay Kanodia - Chandra Laxmi dt 9.5.2012 4 "The term "interlocutory order" in Section 397(2) Cr.P.C. has been used in a restricted sense and not in any broad sense and include 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 right 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 Section 397. 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). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial can not be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."
12.In another case titled Central Bank of India Vs. Gokal Chand, AIR 1967 SC 799, Hon'ble Supreme Court ruled that:
"............ orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document on the relevancy of a question . All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings. They regulate the procedure only and do not affect any right or liability of the parties."
Madhu Limaye Vs. State of Maharashtra " AIR 1978 SC 47
13.In case tiled, " Hon'ble Supreme Court opined, "ordinarily and generally the expression," Interlocutory Order" has been understood and taken to mean as a converse to the term final order. "
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14.In case titled, " Rajendra Kumar Sitarampande Vs. Uttam", 1999 (3) SCC 134 Hon'ble Supreme Court held, " The very object of conferring Revisional Jurisdiction being the Superior Criminal Courts has to correct miscarriage of justice arising from misconception of Law or irregularly of procedure. The discretion of in exercising revisional jurisdiction should, therefore, be exercised within the four corners of Section 397 Cr. P.C whenever there has been miscarriage of justice in whatever manner. In Sub Section (2) of Section 197 Cr. P.C. there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression in interlocutory order has not been defined in the court......
15.In case titled, " ", AIR 2005 SC 38 Hon'ble Supreme Court observed, " Wharton's Law Lexican 14th Edition Page 529 defines Interlocutory order thus, " an Interlocutory Order" or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of parties. " .......... summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only in interlocutory order . In other words, in ordinary sense of the term, the interlocutory order is one which only decides a particular aspect or a particular issue or a particular manner in a proceeding, suit or trial but which does not however conclude the term at all. "
16.In case titled Sethuraman Vs. Rajamanickam , JT 2009 (4) SC 164 Hon'ble Supreme Court has ruled that an order passed by a Magistrate under Section 311 Cr.P.C. is interlocutory and is not amenable to challenge in a revision under Section Page 5 / 7 of Order on Revision -Ajay Kanodia - Chandra Laxmi dt 9.5.2012 6 397 (2) Cr.P.C. and held that:
"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."
17.It is a settled legal proposition that even an order of taking of cognizance ( B.S.Rao Vs. T.V. Sharma 1976 Crl. LJ 902) , granting bail (Neelu Vs. State , 1983 Crl.LJ 1590) or canceling a bail (Bhola Vs. State 1979 Crl.LJ 718) too are interlocutory orders .
18.In case titled Kajal Sengupta Vs. M/s Ahlcon Ready Mix Concrete, Cr.MC 1640/2011 dated 18.5.2011 it has been observed by Hon'ble Delhi High Court that :
"There can not be any dispute that the order granting exemption was nothing but an interlocutory one and so was the order of revocation of the exemption granted. Such orders do not determine the rights of the parties finally but are of interim nature passed during the proceedings of trial."
19.In another case titled, " Surya Dev Rai Vs. Ram Chnder Rai " AIR 2003 SC 3044 (1) Hon'ble Supreme Court opined that the practice of exercise of revisional powers with all type of interlocutory orders is substantially contributing towards delay in trial.
20.In another case titled, " Prem Bakshi Vs. Dharam Dev "
AIR 2002 SC 559 Hon'ble Supreme Court deprecated practice of interference adopted by Superior Courts with each and every interlocutory order passed by Ld. Trial Court which results in delaying the trail.
21.In view of this position I have no hesitation in concluding that impugned order of mere Page 6 / 7 of Order on Revision -Ajay Kanodia - Chandra Laxmi dt 9.5.2012 7 imposition of cost on an account of delay a trial in exercise of power U/s 309 Cr.P.C., does not touch or decide any right of accused / revisionist and is as such purely an interlocutory order. At this juncture Ld. Counsel for revisionist / accused submits that he is not pressing this revision. In view of the above , revision stands dismissed. File be consigned to RR. Copy of this order be sent to Ld. Trial Court for information.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 9.5.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 7 / 7 of Order on Revision -Ajay Kanodia - Chandra Laxmi dt 9.5.2012