Delhi District Court
Sh. Vishwender Singh vs M/S. Godavari Shilpkala Hospitality ... on 9 April, 2018
IN THE COURT OF Mr. ARVIND KUMAR
SPECIAL JUDGE, CBI-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 03/2018
In the matter of:-
Sh. Vishwender Singh
Darbar Niwas, Moti Mahal Complex
Bharatpur-321001
Rajasthan ....... Petitioner/Revisionist
Vs
M/s. Godavari Shilpkala Hospitality Private Limited
12, Dr. A.P.J Kalam Road
New Delhi-110001
through its authorized representative
Shri Manik Kapoor .......... Respondent.
Date of Institution : 02.04.2018
Date reserved for order : 06.04.2018
Date of Order : 09.04.2018
Sh. Vishwender Singh
Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 1
ORDER:-
1. Vide this order, I will be disposing of revision petition filed by the petitioner against the order dated 27.03.2018 passed by Ld. Additional Chief Metropolitan Magistrate thereby dismissing the application of the petitioner for transfer the matter on the ground that offence under Section 138 Negotiable Instrument Act is quasi criminal and cannot be tried by the Court designated for trial of criminal cases/offences against elected MLAs/MPs.
2. Ld. Counsel for respondent submitted that he will be addressing arguments without filing reply.
3. I have heard Counsels for the parties.
4. Ld. Counsel for petitioner submits that private complaint or the complaints under Section 138 Negotiable Instrument Act do not come in the category of the cases which are to be tried by the Courts designated for trial of offence against MLAs/MPs and the order passed by the learned ACMM-II, New Delhi is not sustainable in the eyes of law.
5. It is submitted that only cases which falls either under the Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 2 Prevention of Corruption Act or under Indian Penal Code are meant to be transferred by virtue of directions of Hon'ble Supreme Court in Writ Petition (C) 699/2016 regarding trial of cases against politicians.
6. It is further submitted that as per the orders passed by Hon'ble Supreme Court and notification issued by Hon'ble High Court, only the cases which are mentioned by MLAs/ MPs in their affidavits at the time of filing of their nominations are to be transferred and tried by special court appointed by the respective High Court.
7. It is further submitted that the cases under Section 138 Negotiable Instrument Act need not to be transferred to the courts designated for trial of MLAs/ MPs even though any politician is involved in such case as the proceedings under 138 Negotiable Instrument Act are quasi criminal in nature.
8. On the other hand, Ld. Counsel for respondent contended that the accused is playing dilatory tactics so that trial could not proceed. Ld. Counsel for respondent contended that petitioner has earlier filed transfer application before Chief Metropolitan Magistrate on the ground that learned Presiding Officer was conducting the trial in a biased manner and the said transfer application was withdrawn by the petitioner. Ld. Counsel for respondent submitted that the accused Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 3 does not want to appear before the Court although he was was served with the summons pursuant to the order dated 25.06.2016 on summoning. It is further submitted by Ld. Counsel for respondent that accused had filed revision petition against the order passed on summoning and the said revision was also dismissed by the Court of Sh. Parveen Singh, Ld Special Judge, CBI-02, New Delhi. Thereafter, petitioner has preferred Crl. M.C 1319/2017 before Hon'ble High Court and the said Crl. M.C. was withdrawn by Counsel for the petitioner.
9. I have gone through the material on record.
10. Here it is relevant to reproduce the relevant excerpts of the order dated 01.11.2017 passed by Hon'ble Supreme Court of India in Writ Petition (Civil) No (s) 699/2016 titled Ashwini Kumar Upadhyay Vs Union of India & Anr. Hon'ble Supreme Court observed:-
" Shri. A.N.S. Nadkarni, learned Additional Solicitor General, at the very outset, has submitted that the present is not an adversarial litigation and the Union Government would not be averse to setting up of Special Courts to try criminal cases/offences involving political persons and for utmost expeditious disposal of the same.
While taking the said statement on record we direct the Competent Authority in the Union Government to lay before the Court the following information:
Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 4
1. How many of 1581 cases involving Members of Legislative Assembly (MLAs) and Members of Parliament (Mps.) [as declared at the time of filing of the nomination papers to the 2014 Elections) have been disposed of within the time frame of one year as envisaged by this Court by order dated 10 th March, 2014 passed in Writ Petition (Civil) No. 536 of 2011.
2. How many of these cases which have been finally decided have ended in acquittal/conviction of MPs.
and MLAs.,as may be.
3. Between 2014 and 2017 (as on date) whether any further criminal case(s) has been lodged against any present or former legislator (MP/MLA)and, if so, the detail(s) thereof, including detail(s) with regard to the disposal of such case(s).
4. Insofar as setting up of Special Courts are concerned, setting up of Special Courts and infrastructure would be dependent on the availability of finances with the States. Without going into the controversy raised on the aforesaid score, the problem can be resolved by having a Central Scheme for setting up of Courts exclusively to deal with criminal cases involving political persons on the lines of the Fast Tracks Courts which were set up by the Central Government for a period of five (05) years and extended further which Scheme has now been discontinued."
11. Further, vide order dated 14.12.2017 Hon'ble Supreme Court of India in the aforesaid matter observed:-
"...................... Insofar as issues 4 and 5 outlined in the Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 5 order dated 1.11.2017 are concerned i.e. setting up of Special Courts, a scheme, though, rudimentary at this stage, has been placed before the Court the essence of which is that based on certain calculations and perspectives with regard to the time that would be taken to dispose of the 1581/1571 cases presently pending against the elected MPs / MLAs, the Union of India proposes to set up 12 Fast Track Courts combining several State(s) in respect of which jurisdiction will be exercised by one Special Court. The aforesaid Scheme has been planned as a tentative measure and it is stated at Para 9 of the Additional Affidavit of the Union of India that once the further information is collected in respect of queries 1, 2 and 3, the Scheme may be suitably modified..........
........................ Immediately after such allocation is made and intimated to the respective State Governments, the State Governments in consultation with the High Courts will set up the Fast Track Courts ( 12 in all ) to ensure that the said Courts start functioning from 01.03.2018. All necessary/required notification(s) shall be issued by the concerned/respective State Government(s). The High Court(s), acting through the various trial Courts, will trace out from the case records the particular case(s) pending in the files of the respective judicial officers under the jurisdiction of the High Court (s) which are required to be dealt with by the Special Courts under the Scheme and thereafter transfer the said cases to such Special Court(s) for adjudication.
12. Hon'ble Delhi High Court passed an order dated 23.02.2018 thereby designating two courts, including Court of ACMM- II, New Delhi Patiala House Court as special Court to deal with cases against elected MPs/ MLAs to be made functional in Patiala House Court w.e.f 01.03.2018 and has further directed that cases pending Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 6 against MPs / MLAs in different courts to be transferred to the above said two courts before 01.03.2018. The order passed by Hon'ble High Court on 23.02.2018 is reproduced herein:-
" Hon'ble the Acting Chief Justice and Judges of this Court have been pleased to order that in compliance with the directions of the Hon'ble Supreme Court dated 1.11.2017 and 14.12.2017 in Writ Petition ( Civil ) No. 699/2016 titled " Ashwani Kumar Upadhyay v. UOI & Anr.", the Court presided over by Mr. Arvind Kumar, Special Judge ( PC Act )/CBI, PHC, an officer of Delhi Higher Judicial Service and the Court presided over by Mr. Samar Vishal, ACMM-2, New Delhi PHC, an officer of Delhi Judicial Service have been designated as Special Courts to deal with cases against elected MPs/MLAs to be made functional in Patiala House Courts Complex with effect from 1st March, 2018.
Hon'ble the Acting Chief Justice and Judges of this Court have further been pleased to order that the cases pending against MPs /MLA s in different Courts be transferred to the above said two Courts before 1st March, 2018 and to put such cases on fast track and endeavour be made to dispose of the same within one year."
13. From, the aforesaid directions passed by Hon'ble Supreme Court as well as Hon'ble Delhi High Court it is clear that aforesaid two courts were designated to deal with the criminal cases/offences against elected MPs/ MLAs. It is not in dispute that petitioner is a sitting member of Legislative Assembly of Rajasthan.
14. Section 138 Negotiable Instrument Act pertains to the Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 7 offence regarding dishonour of cheque and prescribes punishment with imprisonment for a term which may extend to two years or fine which may extend to twice the amount of cheque and creates criminal liability. There is no doubt that offence under Section 138 Negotiable Instrument Act falls within the category "criminal cases/offences" as referred in the aforesaid order passed by Hon'ble Supreme Court of India.
15. Vide order dated 23.02.2018, Hon'ble Delhi High Court has passed clear directions that cases of MPs / MLAs be transferred to the aforesaid courts. In compliance of order passed by Hon'ble High Court Ld. Metropolitan Magistrate passed an order dated 13.03.2018 for transfer of aforesaid case under Section 138 Negotiable Instrument Act to the Court of Ld. ACMM-II, designated for trial of criminal cases/offences against MPs/ MLAs. The order dated 27.03.2018 passed by Ld. ACMM-II, dismissing the application of petitioner for transfer of matter back to Ld M.M's Court, is a legal and valid order. The contention of Ld. Counsel for petitioner that proceedings under Section 138 Negotiable Instrument Act is quasi criminal and since present case is complaint case, it cannot be tried by the designated court, is without any basis and is liable to be rejected.
16. In view of foregoing discussion. I do not find any illegality or infirmity in the order dated 27.03.2018 passed by learned ACMM-II.
Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 8 The revision petition is bereft of any merit, hence dismissed.
17. Trial Court Record be sent back.
18. File be consigned to Record Room.
Announced in the open Court today i.e. 09.04.2018 (Arvind Kumar) Spl. Judge CBI-01 PHC/New Delhi/09.04.2018 Sh. Vishwender Singh Vs M/s. Godavari Shilpkala Hospitality Pvt. Ltd CC No. 03/18 Page No. 9