Delhi District Court
Revolution Clothings Pvt. Ltd. & Ors vs Shefali Modi on 20 May, 2014
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IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
C.R. No.01/14
REVOLUTION CLOTHINGS PVT. LTD. & ORS.
.......Revisionists/Accused
Versus
SHEFALI MODI
.......Respondent/Complainant
ORDER
By this order I propose to dispose of the revision filed by the revisionist/accused under Section 397/399 of the Code of Criminal Procedure, 1973, challenging the order dated 05.04.2014 passed by the Ld. M.M by which the Ld. M.M had dismissed the application filed by the revisionist for initiating the proceedings de novo.
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2. I have heard the Ld. Counsel for the revisionist/accused and have also gone through the record of the case.
Background of the case
3. The complainant had filed a complaint under Section 138 of the Negotiable Instruments Act, against the revisionist/accused. The revisionist herein and also one Gunjan Arora were summoned as accused under Section 138 of the Negotiable Instrument Act. The proceedings against Gunjan Arora, however, were dropped on the request of the complainant. After being summoned they were given notice under Section 251 Cr.P.C on 23.01.2012, to which they had pleaded not guilty. On the same day there was an application filed under Section 145(2) of the Negotiable Instrument Act for calling the complainant for the purpose of crossexamination. The said application was allowed on 14.03.2012. It may be noted that the case was being tried by Ld. M.M Ms. Aparna Swami till 02.07.2013 when she had last recorded part cross examination of the complainant and thereafter the case had 3 been transferred by the orders of the Ld. District & Sessions Judge (HQ) to the Court of Sh. Sachin Sangwan, Ld. M.M., who had continued with the examination of the complainant already recorded.
4. The case thereafter was listed on many dates for crossexamination of the complainant and crossexamination was also conducted on behalf of the accused persons. Last time the witness was crossexamined on 05.04.2014 and on the same day there was an application filed for starting the proceedings De Nova interalia making a reference to the judgment of Hon'ble Supreme Court in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr. AIR 2011 SC 3076.
Basis of making request for De Novo trial
5. Broadly the request for 'De Novo trail' has been made on following grounds :
1) As per Section 143 of the Negotiable Instrument Act, this case should have been tried summarily and if the Court 4 were to try this case as a summons case then it could have been done only after having recorded reasons for the same ;
and
2) Since this case was to be tried summarily, therefore, under Section 326(3) the evidence which may have been recorded earlier by the Predecessor Ld. Magistrate could not have been continued by the Successor Ld. Magistrate and he should have started the examination of the witness afresh i.e from the very beginning.
6. The above request of the revisionist/accused, however, was dismissed by the Ld. M.M observing interalia that this case was not being tried as 'summary trail case', but as 'summons trial case'. The evidence which was being recorded was not in terms of Section 264 Cr.P.C wherein the Magistrate is only required to record 'substance of the evidence'.
Conclusion
7. I agree with the observation of the Ld. M.M as 5 Section 326(3) comes to play only when a case is being tried summarily meaning thereby in the course of the trial it is only the substance of the evidence which is recorded. It may be noted that it is only in the cases where substance of evidence has been recorded, it is the judge who had recorded it is in a position to fully appreciate the same. No such situation, however, arises in a case where it is not the substance of the evidence but verbatim whatever is deposed by a witness is recorded in the Court. Therefore, the judgment of Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr. AIR 2011 SC 3076 will have no applicability in the present case.
8. There is a submission made that the procedure laid down under Section 143 of the Negotiable Instruments Act is mandatory and in this case the same had not been followed. In support of the submissions the reference has been made to a number of judgments (Gurpreet Singh Vs. Ranbaxy Labortary, Kalucha Paper House Vs. Mahavir Papers, Rajesh Aggarwal Vs. State, Madan Agarwal Vs. State, United Ink & Vanish Vs. State, Pratibha Pandurang Salvi Vs. State, 6 Paskura Cold Storage Vs. Sri Sujit Kumar Maity and Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr.) I would like to make reference to the judgment of Hon'ble High Court in the case of Rajesh Aggarwal Vs. State Crl. M.C No.1700/2009 & Crl. M.A No.6166/2009 wherein it was laid down :
"This is the mandate of section 143 of N.I. Act, which provides summary trial of offence in terms of Cr.P.C. Under Section 263(g) of Cr.P.C., the court has to record the plea of the accused and his examination. It is thus obvious that in a trial of an offence under section 138 N.I. Act the accused cannot simplicitor say "I plead not guilty"" and wants to face trial. Since offence under section 138 N.I. Act is a document based technical offence, deemed to have been committed because of dishonour of cheque issued by the accused or his company or his firm, the accused must disclose to the Court as to what is his defence on the very first hearing when the accused appears before the Court. If the accused does not appear before the Court of MM on summoning and rather approaches High court, the High Court has to refuse to entertain him and ask him to appear before the Court of MM as the High Court cannot usurp the powers of MM and entertain a plea of accused why he should not be tried under section 7
138. This plea as to why he should not be tried under section 138 is to be raised by the accused before the Court of MM under section 251 & under section 263(g) of Cr.P.C. Along with his plea he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of N.I. Act to recall the complainant to crossexamine him on his plea of defence. However, only after disclosing his plea of defence he can make an application that the case should not be tried summarily but as a summon trial case. This application must disclose the defence of the accused and the reasons why he wants the case to be tried as a summon trial."
9. After having gone through the record and the above judgement it does appear that there is some deviation which had been made by Ld. M.M who had been earlier trying this case in the sense that before proceeding to give notice under Section 251 Cr.P.C there was no specific order passed that in this case it was undesirable to try the case summarily but certainly the revisionist/accused herein cannot complain about it. If at all anyone who could have had any grievance on this account, it could have been the complainant and not the revisionist/accused herein. It appears to me that this application had been filed with the sole purpose of delaying 8 the proceedings. While going through the application filed under Section 145(2) of the Negotiable Instruments Act, I have found that the revisionist / accused had interalia made a prayer "complaint of the complainant be not tried summarily and the same be treated as summons trial". It is difficult to understand as to how suddenly they have this objection to this case being tried as 'summons trial'.
10. I am also of the view that simply because in this case, the procedure which was required to be followed before taking a decision to try this case as a "summons case" was not followed, would not vitiate the proceedings which have taken place till this date and there is no reason to relegate these proceedings back to the stage when the notice u/s 251 Cr.P.C. was given to the revisionist/accused.
Order
11. I do not find any merit in this revision and accordingly dismissing the same.
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12. I can see that this complaint case is pending for the last about five years. Let the Ld. Trial Judge try and conclude the evidence in this case in next five hearings with no adjournments to either party.
13. The trial court record be sent back along with the copy of this order. File be consigned to the record room.
Announced in the Open Court ( L. K. GAUR )
on 20th of May, 2014 Special Judge, P.C. Act
(CBI09), Central District,
Delhi.
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