Delhi District Court
Kulbhushan Dhawan vs Ms. Manjeet Kaur on 28 March, 2018
Page 1 of 21
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADDL. SESSIONS
JUDGE04, WEST DISTRICT, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No.03/2017
Kulbhushan Dhawan
S/o Late Sh. Nand Kishore
R/o 422, Gali No.14,
Joshi Road, Karol Bagh,
New Delhi11005
............Revisionist
Vs.
Ms. Manjeet Kaur
D/o Sh. Avtar
R/o 3072/7, Gali No.10,
Ranjeet Nagar, South Patel Nagar,
New Delhi110008
........Respondent
Date of Filing : 26.12.2016
Date of Arguments : 24.03.2018
Date of Order : 28.03.2018
Criminal Revision Petition U/Sec.397/399 Cr.P.C. against the order dated 20.09.2016 passed in CC No.9863/2016 (old no.38/1/15)
1. This revision petition has been filed by the revisionist against the impugned order dated 20.09.2016 passed by Ms. Ruchi Aggarwal Asrani, Ld. Metropolitan Magistrate03, N.I. Act, West District, Tis Hazari Court, Delhi vide which the application of revisionist filed U/Sec.203 Cr.P.C. for dismissal of complaint was dismissed. CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 2 of 21
2. The brief facts necessary for disposal of present petition are as follows: 2.1 The complaint case i.e. CC No.9863/16 (old no.38/1/15) U/Sec.138 of Negotiable Instruments Act (hereinafter referred to as "N.I. Act") was filed by the present respondent (hereinafter referred to as "complainant") against the present revisionist (hereinafter referred to as "accused") by stating that in the month of December, 2012 the accused had approached the complainant for financial help and the complainant advanced to him a friendly loan of ₹ 5,50,000/. The three cheques given by accused towards repayment of said loan, on presentation for encashment, were returned unpaid vide cheque returning memo dated 17.05.2014 with the remarks "NonCTS Cheque". The complainant issued a legal notice on 11.06.2014 to the accused. But despite service of said notice, the accused failed to make any payment. Hence, the aforesaid complaint case was filed U/Sec.138 N.I. Act by the complainant.
2.2 The Ld. Trial Court summoned the accused after presummoning evidence. When the matter was fixed for framing notice U/Sec.251 Cr.P.C., the accused moved an application U/Sec.203 Cr.P.C. for dismissal of complaint case stating therein that the reason for non acceptance of cheque by the bank was "NonCTS Cheque" which was not one of the grounds provided in Sec.138 N.I. Act for filing a complaint CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 3 of 21 for cheque bouncing. Vide order dated 20.09.2016, the Ld. Trial Court dismissed the said application and the said order is under challenge in the present revision petition.
3. The present revision petition has been filed by the accused for setting aside the impugned order dated 20.09.2016 on the following main grounds:
(i) That the return memo given by the bank does not give any of the reason as given in Sec.138 N.I. Act.
(ii) That the subject matter of N.I. Act is either cheque or bill of exchange or promissory note but in view of the RBI norms, the instrument in question was neither a cheque nor bill of exchange nor promissory note on the date of presentation because as per the RBI norms the nonCTS cheques were not valid after 31.12.2013.
(iii) That the cheques in question were returned without looking into the account of the accused and therefore, there is no question of either insufficiency of funds or stop payment or account closed and hence no liability under Sec.138 N.I. Act.
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(iv) That it was upon the bank to clear or not to clear the cheques and if the bank has not cleared the cheques, the liability cannot be imputed upon the accused.
4. Notice of present revision petition was given to respondent/complainant and the revision petition has been contested by her.
5. I have heard the arguments from counsel Sh. Ghanshyam Thakur for revisionist/accused and Counsel Sh. Khushbir Singh for the respondent/complainant and perused the record including the Trial Court record in the light of submissions made before me.
6. The Counsel for revisionist/accused has vehemently argued that the impugned order is liable to be set aside as it is not legal whereas the counsel for respondent/complainant has argued that the said order has been passed after considering all the relevant facts and circumstances and there is no need to interfere in the same.
7. The counsel for complainant has vehemently argued that the revision petition is not maintainable as the impugned order is interlocutory. But the counsel for accused, while placing reliance upon caselaw titled as Jarnail Singh Vs. State of Rajasthan, 1992(3) R.C.R.(Criminal) 436, CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 5 of 21 has argued that the impugned order is not interlocutory but intermediate order and revision against said order is very much maintainable.
8. As per Sec.397(2) Cr.P.C., no revision lies against an interlocutory order.
The expression "interlocutory order" is not defined in the Cr.P.C. Ordinarily and generally, the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. It is settled law that the feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings and if so, any order passed on such objections would not be merely interlocutory in nature as envisaged in Sec.397(2) of Cr.P.C. It has been held in Jarnail Singh Vs. State of Rajasthan, 1992(3) R.C.R.(Criminal) 436 as follows:
"To our mind, in the context of Section 397(2) Criminal Procedure Code expression 'interlocutory order' would not embrace orders, which are of moment and vitally affect the accused. In this context the test would be whether acceptance of the plea raised by the accused was capable of terminating the proceedings against him or not. It would be immaterial if the rejection of such plea does not by itself terminate the proceedings and after rejection the CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 6 of 21 proceedings continue. We may envisage a case where the accused raised a plea that he cannot be tried for want of sanction required by law as a condition precedent to the trial or a case where even if the prosecution story is accepted in its totality, no offence is made out or a case that the accused had been previously tried on that very charge by a competent court and had been acquitted. Now all these pleas are such, which if accepted would conclude the proceedings against the accused. We may here recall that in Mohanlal Maganlal Thakker (supra), it was specifically ruled that finality of the order could not be judged by correlating that order with the controversy in the complaint. The fact that the controversy remained alive was immaterial. We would, therefore, say that a plea, which on its acceptance, was capable of terminating the trial itself, if rejected, would not constitute the order of rejection as an 'interlocutory order' but for the limited purposes of Section 397(2) Criminal Procedure Code would be an intermediate order partaking the character of final order and would be revisable under Section 397(2) Criminal Procedure Code."
9. It has been held by the Hon'ble Supreme Court in M/s. Bhaskar Ind.
Ltd. v. M/s. Bhiwani Denim & Apparels Ltd., AIR 2001 SC 3625, CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 7 of 21 "If the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage."
10. It has been held by Hon'ble Supreme Court in Limaye Vs. State of Maharashtra, AIR 1978 SC 47, "An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2)."
11. Thus it is clear that if the proceedings would get culminated on acceptance of plea raised by the accused, then order rejecting such plea is not interlocutory order. In the present case, the plea of the accused as raised by him in his application under Sec.203 Cr.P.C. was that the complaint case under Sec.138 N.I. Act was not maintainable as the reason of dishonour of cheques was "nonCTS cheques" which is not covered within the grounds mentioned in Sec.138 N.I. Act. The plea of accused, if accepted, would have certainly culminated the proceedings CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 8 of 21 against him. Thus, in view of the aforesaid caselaws, it is clear that the impugned order is not interlocutory and hence the present revision petition is legally maintainable.
12. One of the grounds for filing present revision petition by the accused is that the instruments in question were not cheques on the date of its presentation in view of the RBI norms. It has been argued by the counsel for accused that as per the RBI norms all nonCTS cheques had become invalid w.e.f. 31.12.2013 and thus, on the date of presentation of cheques in question i.e. on 17.05.2014, the said cheques were not valid cheques and hence, no case U/Sec.138 N.I. Act could have been filed on the basis of invalid cheques. But I do not find any merit in his contention because the cheques had not become invalid, it is only that the processing of nonCTS cheques was made limited to some particulars days.
13. Vide notification dated 22.01.2010, the RBI started CTS (Cheque Truncation System) i.e. "CTS2010 Standard" for standardization and enhancement of security features in cheque forms and directed all the banks to issue only CTS2010 Standard cheques and vide notification dated 03.09.2012, the RBI directed all the banks to withdraw all the non CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 9 of 21 CTS cheques in circulation before 31.12.2012. While looking into the representations made by various stakeholders requesting for extension of said date, the RBI vide notification dated 14.12.2012 extended the date upto 31.03.2013 for banks to ensure withdrawal of nonCTS cheques and replace them with CTS2010 Standard cheques. Then vide notification dated 18.03.2013, the RBI held that all residual nonCTS cheques with customers would continue to be valid and accepted for another four months upto 31.07.2013. And vide notification dated 16.07.2013, the RBI observed that though banks had begun to issue fresh cheques in CTS2010 format but still there was a large volume of nonCTS2010 format cheques in clearing and therefore, it decided to put in place the following arrangement interalia for clearing of residual nonCTS cheques: "Separate clearing session will be introduced in the three CTS centers (Mumbai, Chennai and New Delhi) for clearing of such residual nonCTS2010 instruments (including PDC and EMI cheques) with effect from January 1, 2014. This separate clearing session will initially operate thrice a week (Monday, Wednesday and Friday) up to April 30, 2014. Thereafter, the frequency of such separate sessions will be reduced to twice a week CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 10 of 21 up to October 31, 2014 (Monday and Friday) and further to week once (every Monday) from November 1, 2014 onwards."
14. Thus it is clear from the said notification that the nonCTS cheques had not become invalid, rather the number of days were reduced for their presentation for encashment. The cheques in question were presented for encashment on 17.05.2014. As per the aforesaid notification dated 16.07.2013, the said cheques were required to be presented as per the abovesaid schedule. Certainly the cheques were very much valid on the day of their presentation. Hence, the contention of the accused that no case under Sec.138 N.I. Act could have been filed due to the reason of said cheques being invalid is rejected being meritless.
15. It has been contended by the counsel for complainant that in view of caselaw titled as Adalat Prasad Vs. Rooplal Jindal, AIR 2004 SC 4674, the remedy available with the accused was not to file application U/Sec.203 Cr.P.C. but to approach Hon'ble High Court under Sec.482 Cr.P.C. In Adalat Prasad's case (supra), the summoning order passed U/Sec.204 Cr.P.C. was challenged by the accused by moving application U/Sec.203 Cr.P.C. and the Hon'ble Supreme Court held that the stage of Sec.203 Cr.P.C. was already over as the process under Sec.204 Cr.P.C. CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 11 of 21 was issued and further that summoning order could not be recalled as the Cr.P.C. does not contemplate a review of an order. But the Hon'ble High Court of Delhi in Urrshila Kerkar Vs. Make My Trip (India) Private Ltd., CRL.M.C.2598/2012 & Crl.M.A.13279/2012, date of decision 08.11.2013 has held that the ruling of Adalat Prasad's case (supra) cannot be misread to mean that proceedings cannot be dropped against accused at the stage of framing of Notice under Sec.251 of Cr.P.C. when a prima facie case is not made out. The Hon'ble Court has held as follows: "It is no doubt true that Apex Court in Adalat Prasad Vs. Rooplal Jindal and Ors., (2004) 7 SCC 338 has ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar and Krishan Kumar (supra), aforesaid decision cannot be misconstrued to mean that once summoning order has been issued, then trial must follow. If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 Cr.P.C. In the considered opinion of this Court, Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread to mean that proceedings in a summons complaint case cannot be dropped against an CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 12 of 21 accused at the stage of framing of Notice under Section 251 of Cr.P.C. even if a prima facie case is not made out."
16. Though in the present case application was filed by accused under Sec.203 Cr.P.C. for dismissal of complaint but if the substance of the application is seen, then it is clear that in fact it is an application for discharge of accused. It is settled law that the nomenclature of an application is really not material and it is the substance which is to be seen and that only because the application has been filed under wrong provision of law, the party cannot be nonsuited and further that the Court can apply the correct provision and grant relief.
17. In Raujeev Taneja Vs. NCT of Delhi, Crl. M.C. No. 4733 of 2013 decided on 11th November, 2013, a summoning order U/Sec.138 N.I. Act was challenged before the Hon'ble High Court of Delhi and while relying upon Bhushan Kumar Vs. State (NCT of Delhi), AIR 2012 SC 1747 and Krishna Kumar Variar Vs. Share Shoppe, (2010) 12 SCC 485, the Hon'ble High Court directed the accused to urge the plea before the learned Trial Court at the stage of framing of notice while directing the Trial Court to deal with the pleas raised by accused by passing a speaking order and also held that if the Trial Court proceeds to drop the CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 13 of 21 proceedings qua accused, then the Apex Court's decision in Adalat Prasad Vs. Rooplal Jindal, (2004) 7 SCC 338, would not stand in the way of Trial Court to do so. The relevant portion of the said judgment is reproduced hereunder: "Since Notice under Section 251 Cr.P.C. has not yet been framed, it is deemed appropriate to relegate petitioners to urge the pleas taken herein before the trial court at the hearing on the point of framing of Notice under Section 251 of Cr.P.C., as the dictum of Apex Court in Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr., AIR 2012 SC 1747, persuades this Court not to exercise inherent jurisdiction under Section 482 Cr.P.C. to entertain this petition. Pertinent observations of Apex Court in Bhushan Kumar (Supra), are as under:
17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 14 of 21 commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."
Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Variar v. Share Shoppe, (2010) 12 SCC 485, is as under:
4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 15 of 21 question of jurisdiction before proceeding further with the case.
5. For the reasons stated hereinabove, the impugned judgment and order is set aside and the appeal is allowed. The appellant, if so advised, may approach the trial court with a suitable application in this connection and, if such an application is filed, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question of jurisdiction before further proceeding with the trial."
In view of authoritative pronouncement of the Apex Court in Bhushan Kumar and Krishan Kumar (supra) as referred to hereinabove, this petition and application are disposed of while refraining to comment upon merits, lest it may prejudice either side at the hearing on framing of Notice under Section 251 of Cr.P.C., with liberty to petitioner to urge the pleas taken herein before the trial court at the stage of hearing on the point of framing of Notice and if it is so done, then trial court shall deal with the pleas raised herein by passing a speaking order.
CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 16 of 21 Needless to say, if the trial court proceeds to drop the proceedings qua petitioners, then the Apex Courts decision in Adalat Prasad v. Rooplal Jindal and Ors., (2004) 7 SCC 338, would not stand in the way of trial court to do so."
18. It is pertinent to mention here that the Hon'ble High Court of Delhi in Arvind Kejriwal Vs. Amit Sibal, 2014(212) DLT 489, while exercising it's powers under Sec.482 r.w. Sec.483 Cr.P.C. and Art.227 of the Constitution passed directions for the MMs to discharge/drop the proceedings against the accused if no prima facie case against accused is made out. The relevant portion of said caselaw is as follows: "In view of the authoritative pronouncements of the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K. Bhalla (supra), the accused are entitled to hearing before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 17 of 21 prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra)."
19. Thus in view of the abovesaid caselaws, it is incumbent upon the Magistrate to discharge accused at the time of framing notice U/Sec.251 Cr.P.C. if prima facie no case is made out against him. So far as the present case is concerned, it is admitted fact that the cheques in question were nonCTS cheques. As per the RBI notification dated 16.07.2013, in the month of May, 2014 the nonCTS cheques could have been presented for encashment on only two days i.e. Monday and Friday. But the cheques in question were present on Saturday (17.05.2014) and therefore, the same were returned by the bank unpaid CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 18 of 21 with the remarks "nonCTS cheque". There was no fault of the accused for the said return of cheques. As per the RBI's notification dated 16.07.2013, if the nonCTS cheque is presented in regular CTS clearing then the drawee bank will return the said nonCTS cheque under the reason code '37 Present in proper zone' and such returned cheque will have to be represented by the collecting bank in the immediate next special clearing session of nonCTS cheques. But if in the present case the said procedure is not followed by the drawee or collecting bank, then certainly the accused could not be penalized for the same. His bank account was not even processed by the bank official and therefore, it could not be said that the cheques were returned unpaid due to "insufficient funds" or "exceeds arrangement" or "signatures differ" and hence, no liability can be imputed on the accused for said return of cheques. It is settled law that for filing a complaint case under Sec.138 N.I. Act, the cheque must have been returned unpaid due to the reasons mentioned in the said provision viz. "insufficiency of funds" or "exceeds arrangements", etc. Thus an action lies under the said provision if the cheque is got dishonoured due to the fault of the accused. But if the cheque gets dishonoured due to some technical banking reasons wholly unconnected with the accused, then he is not responsible for the same CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 19 of 21 and no case under Sec.138 N.I. Act can be filed against him for the said dishonour of cheque. In Ceasefire Industries Ltd. Vs. State & Ors., 2017(2) MadWN (Cri) 71, the cheque was returned unpaid by the bank with the remarks "account blocked" as the bank account of the accused/drawer was frozen by the order of some statutory authority and the complainant/drawee issued legal notice to the accused/drawer followed by case filed under Sec.138 N.I. Act but the said case was dismissed by the Ld. MM. The Hon'ble High Court of Delhi in the said case while upholding the decision of Ld. MM of dismissal of complaint, held as follows:
"6. In the opinion of this court, the view taken by the Metropolitan Magistrate in the two complaint cases cannot be faulted. The provision contained in Section 138 of the N.I. Act makes it clear that it is not every return of a cheque unpaid which leads to prosecution of an offence under the said provision of law. For such purposes, the cheque must have been returned "unpaid" either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
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7. The bank which returned the cheques unpaid had made it clear that the accounts had been blocked. It is clear that the complainant itself was aware that the accounts had been frozen in terms of directions by some statutory authority. In these circumstances, the reasons for return of the cheques unpaid being not what is envisaged in Section 138 of the N.I. Act, these petitions are devoid of merit and, therefore, dismissed." (underlining added)
20. Similarly, the reason for return of cheques in the present case i.e. "non CTS cheque" is also not what is envisaged in Sec.138 N.I. Act and hence, the complaint U/Sec.138 N.I. Act is not maintainable and is required to be dismissed. The Ld. Trial Court has wrongly held that it has to be seen during trial that whether there were sufficient funds in the account of the accused because the trial could be held only if the complaint is legally maintainable before the Court. Once the complaint case itself is not maintainable, no question of holding trial arises.
21. Hence, in view of the aforesaid discussion and analysis, the impugned order is setaside and it is held that the complaint case bearing CC No.9863/16 (old no.38/1/15) filed by respondent/complaint U/Sec.138 N.I. Act is not legally maintainable and accordingly dismissed. CR No.03/2017 Kulbhushan Dhawan Vs. Manjeet Kaur Page 21 of 21
22. TCR be sent back alongwith copy of this Order.
23. File of Revision Petition be consigned to Record Room.
(Announced in open
Court on 28.03.2018) (Navita Kumari Bagha)
ASJ04, West District,
Tis Hazari Court, Delhi
CR No.03/2017
Kulbhushan Dhawan Vs. Manjeet Kaur