Delhi District Court
M/S Shubham Jewellers vs Kanwal Nain Kaur on 9 April, 2018
IN THE COURT OF DR. ASHISH AGGARWAL, ASJ-03
(CENTRAL), TIS HAZARI COURTS: DELHI
CR. Rev. No. 452/17
M/s Shubham Jewellers
Address 1: R45, Greater KailashI
New Delhi - 110048.
Address 2: 21/130, Vikram Vihar,
New Delhi.
Through it proprietor
Mr. Prakash Verma ... Revisionist
Versus
Kanwal Nain Kaur
W/o Sh. Harminder Singh
R/o R45, Greater KailashI
New Delhi - 110048. ... Respondent
Date of Institution: 06.10.2017
Date of Decision: 09.04.2018
ORDER
1. This order shall decide the revision petition.
2. The revisionist has, through this petition, assailed order dated 01.07.2017 passed by the court of Ms. Riya Guha, Ld. MM, Central District, Tis Hazari Court, Delhi in case titled Kanwal Nain Kaur Vs. M/s Shubham Jewellers, CC No. 513419/16.
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3. A brief background of the case would be apposite. The case before the Ld. Trial Court is a complaint case alleging commission of offence under Section 138 of Negotiable Instruments Act. The complaint had been filed by the respondent against the revisionist. Revisionist was summoned as accused. After putting in appearance, notice under Section 251 of Criminal Procedure Code was framed and served upon the accused. During the stage of defence evidence, the case had been transferred out from the Ld. Trial Court in view of an Amendment Ordinance. Later, the case was received back in the court. By order dated 01.07.2017, the Ld. Trial Court took note of the absence of the accused and closed the opportunity to lead defence evidence. The revisionist filed the present revision petition challenging the said order.
4. The grounds urged in the revision petition are that the Ld. Trial Court has failed to give adequate opportunity to the revisionist/accused to lead evidence to prove his innocence; that the Ld. Trial Court acted in haste and failed to decide the application under Section 311 of Criminal Procedure Code which had been filed before the Ld. Trial Court for recall of complainant's witness for crossexamination; that the complainant had herself not M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 2 of 14 been appearing before the Ld. Trial Court and, therefore, the case could not have been proceeded with; that on 01.10.2013 and 25.01.2014 the defence witness was present but he could not be examined due to absence of complainant and, therefore, it is the complainant who must be faulted, and not the accused/revisionist. During oral arguments, the same contentions were canvassed by Ld. Counsel for revisionist.
5. The respondent has filed reply to the revision petition. It is stated in the reply that ample opportunity was granted to the revisionist to lead defence evidence but the revisionist failed to lead evidence. It is urged that there is no flaw in the impugned order. During oral arguments, Ld. Counsel for respondent additionally contended that the revision petition is not maintainable since the impugned order is an interlocutory one. Ld. Counsel for respondent relied on the cases reported as Sethuraman Vs. Rajamanickam, Crl. Appeal No. 486487 of 2009 dated 18.03.2009, K.K. Patel & anr. Vs. State of Gujarat & anr., Special Leave Petition (Crl.) 3774 of 1999 dated 12.05.2000 and M/s Bhaskar Industries Ltd. Vs. M/s Bhiwani Denim & Apparels Ltd. & ors., Appeal (Crl.) 858 of 2001 dated 27.08.2001 to buttress this submission.
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6. The other contentions forming part of the reply are aimed at demonstrating that the revisionist has committed the offence under Section 138 of Negotiable Instruments Act. The said pleas are irrelevant at this stage. For their adjudication, trial is underway. Therefore, I shall not be referring to the averments made in the reply in support of correctness of the accusation.
7. The first question before this Court is whether the present revision petition is maintainable. According to Ld. Counsel for respondent, the impugned order is an interlocutory order and therefore the revision petition is not maintainable. The contention is based on Section 397 (2) of Criminal Procedure Code.
8. By the impugned order dated 01.07.2017, the opportunity to lead defence evidence has been closed. The order under challenge is not one whereby the Ld. Trial Court declined or failed to decide the application under Section 311 of Criminal Procedure Code. The impugned order is of closure of evidence without first deciding the application under Section 311 of Criminal Procedure Code. An order of closure of defence evidence is bound to substantially affect the rights of the accused. It essentially implies that M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 4 of 14 the accused shall not be able to prove his innocence before the court by leading evidence. Such an order may, in most cases, seal the fate of the accused. A person accused of commission of an offence is entitled to a full opportunity to lead evidence to establish his innocence. To afford this opportunity is all the more imperative in cases under Section 138 of Negotiable Instruments Act. This is because in such cases a complainant has the aid of different statutory presumptions (Sections 118 and 139) laid down under the Act. The task of the complainant has been made much simpler and he only needs to formally prove the documents showing dishonour of cheque issued by the accused in his favour for insufficiency of funds. As to whether the cheque was issued in order to discharge a legally enforceable debt, and if not, under what circumstances the cheque came to be issued, are matters for the accused to prove. A heavy onus is to be discharged by the accused. In doing so, the accused is not to be crippled. An order purporting to curtail this opportunity would surely impinge on the legal rights of the accused. Such an order would not be an interlocutory order.
In this behalf, I am supported by the decision of Hon'ble Supreme Court in the case of Amarnath & Ors. Vs. State of M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 5 of 14 Haryana & Ors, 1978 SCR (1) 222. In that case, Hon'ble Supreme Court observed as follows :
"It seems to, us that the term ''interlocutory order'' in Section 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 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 that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 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 order which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 6 of 14 of the trial cannot be said to be interlocutory so as to be outside the purview of the revisional jurisdiction of the High Court."
In the case of T. Nagappa Vs. Y.R. Muralidhar, Appeal (Crl.) No. 707 of 2008 dated 24.04.2008, the Hon'ble Supreme Court laid down that every accused person has a right to fair trial and the right to lead evidence in his defence. It was further held that even if the defence of the accused may seem illusory or unjustified, the accused would still be entitled to lead defence evidence. The Hon'ble Supreme Court set aside the order declining the prayer of the accused for forensic examination of the cheque. The Hon'ble Supreme Court relied upon the following observation made in a previous decision of the Court in the case of Kalyani Baskar Vs. M.S. Sampoornam (2007) 2 SCC 258:
"The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 7 of 14 right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them."
9. If there is a procedural lapse that materially affects the rights of the accused and deprives him of a fair trial, the order cannot be immunized from scrutiny of revisional court. In such a case where there has been a departure from the process established by law, it is the duty of the revisional court to intervene and to rectify the error so as to place the trial back on track. This is the very purpose of conferring wide powers on the revisional court. It cannot be a mere spectator to miscarriage of justice, waiting for the final judgment to be passed before exercising the jurisdiction vest in it.
10. On the basis of the aforenoted decisions, I am of the view that the impugned order is not an interlocutory order. In this behalf, I do not find the judgments cited by Ld. Counsel for the respondent to be applicable.
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11. Ld. Counsel for respondent had relied upon the judgment of Hon'ble Supreme Court in the case of K.K. Patel & anr. Vs. State of Gujarat & anr., Special Leave Petition (Crl.) 3774 of 1999 dated 12.05.2000. Ld. Counsel for respondent argued that as per the said judgment, the order in question is an interlocutory order and therefore, revision petition is not maintainable against the said order. I am unable to agree with the said contention. The judgment does not come to the aid of the respondent. In that case, the accused persons had been summoned. They moved an application before Ld. Magistrate for discharge. The application was dismissed. They filed a revision petition. The Hon'ble Supreme Court held that said revision petition is maintainable. The judgment rather supports the case of the revisionist herein. In the judgment it has been held as follows:
"It is now well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage"
Thus, the mere fact that trial is still pending before Ld. Trial Court does not imply that the present revision M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 9 of 14 petition cannot be entertained. In other words, for the revision petition to be maintainable, it is not necessary that the proceedings before the Ld. Trial Court should have been terminated.
In the case of M/s Bhaskar Industries Ltd. Vs. M/s Bhiwani Denim & Apparels Ltd. & ors., Appeal (Crl.) 858 of 2001 dated 27.08.2001, the Hon'ble Supreme Court did not finally decide the question of maintainability of the revision petition. The Hon'ble Supreme Court made observations similar to those that had been made in the case of K.K. Patel (supra) and then left the question open. It was observed thus:
"At any rate the objection regarding maintainability of the revision petition should have been raised before the court which invoked such a revisional jurisdiction. Inasmuch as the same was not done we leave that question undecided now."
In the case of Sethuraman Vs. Rajamanickam, Crl. Appeal No. 486487 of 2009 dated 18.03.2009, the question before Hon'ble Supreme Court was whether an order rejecting an application under Section 91 and Section 311 of Criminal Procedure Code was an interlocutory order. In M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 10 of 14 the present case, the impugned order is one whereby defence evidence itself has been closed. The aforesaid judgment is not applicable to the facts of this case.
12. In light of the aforesaid, it is held that the impugned order is not an interlocutory order and the revision petition is maintainable.
13. The next issue is whether the revision petition deserves to be allowed. It is noticed from the Trial Court record that the Ld. Metropolitan Magistrate had closed the opportunity to lead defence evidence before deciding the application under Section 311 of Criminal Procedure Code. Once the application under Section 311 of Criminal Procedure Code is filed seeking an opportunity to cross examine the complainant's witness, the Ld. Trial Court ought to have first decided the said application and only then could it have proceeded with defence evidence. Inasmuch as this has not been done, calling upon the accused to lead defence evidence is improper and is liable to be set aside. Since the revision petition is to be allowed on this ground, there is no need to examine the other grounds raised by the revisionist in support of his plea that he was not granted adequate opportunity to defend M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 11 of 14 himself. It may, however, not be out of place to mention that when the case was taken up for defence evidence before the Trial Court, on 01.10.2013, 25.01.2014, 16.05.2014, 20.08.2014, 13.04.2015, 15.09.2015, 18.01.2016, 23.03.2016, 27.07.2016, 24.10.2016, 06.02.2017 and finally even on 01.07.2017, the complainant was not present. The defence witness was present on 25.01.2014 but, as per the order sheet, he was not allowed to be examined since complainant was absent.
14. I also deem it fit to pass certain directions so as to prevent the revisionist from obtaining undue advantage and from using this order as a tool to delay the proceedings before the Ld. Trial Court.
15. It is, therefore, ordered as follows:
a. The order dated 01.07.2017 passed by the Court of Ms. Riya Guha, Ld. MM02, Central District, Delhi is set aside;
b. The Ld. Trial Court is directed to decide the application under Section 311 of Criminal Procedure Code which had been filed by the accused/revisionist on 04.01.2016, and which remains pending till date;
M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 12 of 14 c. After deciding the said application, the accused/revisionist shall be granted a fresh opportunity to lead defence evidence;
d. Not more than one effective opportunity shall be granted to the accused/revisionist to advance arguments on the application under Section 311 of Criminal Procedure Code;
e. Not more than two effective opportunities shall be granted to the accused/revisionist to lead entire defence evidence, whenever that stage is arrived at.
The above shall not be construed as a direction to the Ld. Trial Court to allow the application under Section 311 of Criminal Procedure Code.
The revision petition stands disposed off with the aforesaid directions.
Ahlmad of this court shall send the Trial Court case file to the Ld. Trial Court, alongwith copy of this order, to be taken up on the date fixed in the matter or on any other date as may be deemed fit.
M/s Shubham Jewellers Vs. Kanwal Nain Kaur Page No. 13 of 14 The file of the revision petition shall be consigned to record room.
Announced in open Court on 09th April, 2018 (Ashish Aggarwal) Addl. Sessions Judge03 (Central), Tis Hazari Courts, Delhi.
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