Court On Its Own Motion vs State
2011 Latest Caselaw 5827 Del

$~27 & 28
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.REV.P. 136/2011

      COURT ON ITS OWN MOTION                    ..... Petitioner
                     Through
              versus
      STATE                                        ..... Respondent
                     Through Mr. Manoj Ohri, APP for the State
                             with Inspector Anil Dureja, Spl. Unit,
                             Crime Branch.
                             Mr. Rajeev Sharma, Adv. for NPR
                             Finance Ltd.
                     AND

+     CRL.REV.P. 149/2011

      COURT ON ITS OWN MOTION                     ..... Petitioner
                     Through
              versus
      STATE                                       ..... Respondent
                     Through Mr. Manoj Ohri, APP for the State
                             with Inspector Anil Dureja, Spl. Unit,
                             Crime Branch.
                             Mr. R.K. Kapoor, Adv. for Bank.
      CORAM:
      HON'BLE MS. JUSTICE MUKTA GUPTA

                               ORDER

% 30.11.2011

1. These revision petitions were initiated suo motu on the fax received

from the Registrar General, High Court of Gujarat, Ahmedabad.

2. Briefly stated facts of Crl. Rev. Petition No. 136/2011 are that a

complaint was filed before the learned Chief Metropolitan Magistrate by

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 1 of 9 NPR Finance Ltd. through its attorney Shri Bhupal Singh Bisht under

Section 138 and 142 of the Negotiable Instruments Act, 1881. The said

complaint was assigned to the learned Metropolitan Magistrate on 16th July,

2008 on which date the accused Babubhai Malabhai Rabari was summoned.

Fresh summons were issued to the accused returnable on 30 th October, 2010

and 21st January, 2011. As the complainant did not take steps, once again

fresh summons were issued returnable on 5th March, 2011 on the

complainant filing PF/RC/approved courier/dasti. Report on summons was

not received back. Awaiting the said report on 5th March, 2011, again fresh

summons were issued to the accused on filing of PF/RC/approved

courier/dasti, returnable on 23rd April, 2011. Counsel for the complainant

was further directed to get summons served through all possible modes of

service and file the report on the next date of hearing.

3. The copy of summons received by fax shows that Dasti summons

have been sent to the accused Babubhai Malabhai Rabari, returnable on 23 rd

April, 2011 with type written note on it "Service be effected by Chief

Justice, Gujarat High Court personally and report on the date fixed". A

perusal of the copy of the summons received from the Registrar General,

Gujarat High Court showed that there was apparent tampering/interpolation

in it.

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 2 of 9

4. On 24th March, 2011 this court while staying the proceedings before

the learned Trial Court and operation of the order dated 5th March, 2011

including execution of the summons sent to the Chief Justice, Gujarat High

Court issued notice to the complainant through its attorney and counsel for

the complainant as well.

5. Reply affidavits by the authorized representative of the complainant

and the counsel were filed. It is stated in the affidavit that in usual course of

practice in cases under Section 138 Negotiable Instrument Act pertaining to

banks and finance companies where summons in bulk are prepared, the

Ahlmad takes the help of attorneys/authorized representatives/executives of

the complainant for preparing the summons. According to the authorized

attorney of the complainant, they had filed 11 cases and amongst them dasti

summons/non-bailable warrants only in six cases mentioned at Sr. Nos. (i) to

(vi) of the affidavit were handed over to him. However, summons/Bailable

Warrants in 5 cases mentioned at Sr. Nos. (vii) to (xi) were not handed over

by the Ahlmad either to him or to Shri Prakash Chand. It may be noted that

the present complaint related to Sr. No.10 in the affidavit and for that no

summons/bailable warrants had been received by the authorized attorney of

the complainant as per the affidavit.

6. In Crl.Rev.Petition No.149/2011 the facts are that a complaint was

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 3 of 9 filed before the learned Chief Metropolitan Magistrate by the Bank of India

through its Senior Manager Shri Akhilesh Kumar Gupta under Section 138

and 142 of the Negotiable Instruments Act, 1881. The said complaint was

assigned to the learned Metropolitan Magistrate on 27th August, 2008 on

which date the accused i.e. M/s International Diamonds Services Limited,

Ashok Kumar Jain and Sunil Kumar Jain were summoned. Accused No.2

entered appearance and he was admitted to bail. Subsequently, fresh

bailable warrants were issued against accused No.2 and 3 on 8 th November,

2010 returnable on 28th January, 2011. On 28th January, 2011, the Presiding

Officer was on leave and the matter was adjourned to 9 th March, 2011 on

which date, the Court issued fresh bailable warrants against the accused in

terms of previous order on filing process fee returnable on 18th May, 2011

on the complainant taking steps within seven days. It was directed that

bailable warrants be sent to process serving agency to be executed through

concerned SHO. It was also directed that the concerned official who will be

entrusted with execution of the warrants shall endorse the report for at least

three visits which would be made by him for the purpose of execution along

with the respective dates. Dasti warrants were also directed to be given.

7. A copy of the summons has been received via fax from the Registrar

General, High Court of Gujarat which shows that summons through SHO,

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 4 of 9 Pahar Ganj, Delhi have been sent to Shri Sunil Kumar Jain, Director M/s

International Diamonds Services Limited, 201, Shanti Niketan Apartments,

Opposite Central Bank, Gadgari Marg, Navsari, Gujarat-396445 and two

other addresses at Delhi and Mumbai. There is a type written note on the

summons which state, "Chief Justice, Gujarat High Court is directed to

execute it immediately and report and appear on date fixed".

8. A perusal of the copy of fax received from Gujarat High Court

showed that there was tampering/interpolation in it as the next date of

hearing fixed in the matter was 18th May, 2011 and not 28th April, 2011 and

the warrants were issued on 9th March, 2011 whereas the date of issuance of

warrants was mentioned as 28th January, 2011.

9. On 31st March, 2011 this court while staying the proceedings before

the learned Trial Court and the operation of the order dated 9th March, 2011

including execution of the summons sent to the Chief Justice, Gujarat High

Court issued, notices to the complainants through its authorized officer and

counsels for the complainants as well.

10. Reply affidavits by the authorized representative of the complainant

and the counsel were filed. It is stated in the affidavit that on 8 th November,

2010, the Trial Court directed issuance of bailable warrants against Accused

Nos. 2 and 3. Pursuant thereto, process fee was filed and bailable warrants

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 5 of 9 against Accused Nos. 2 and 3 were issued on 24th November, 2011 for 28th

January, 2011. When the counsel for complainant approached Police Station

Paharganj to file the bailable warrants, the officials of the police station

refused to take the bailable warrants as the address of the accused persons

was not within the jurisdiction of PS Paharganj, thus warrants could not be

executed. On 28th January, 2011 the learned Metropolitan Magistrate was on

leave and the Link Magistrate directed issuance of fresh bailable warrants in

terms of previous order for 9th March, 2011. On 9th March, 2011 the learned

Metropolitan Magistrate again directed issuance of fresh bailable warrants

against the accused persons for 18th May, 2011to be sent to the process

serving agency and to be executed through concerned SHO. It was further

directed that the concerned official who will be entrusted for execution of

warrants shall endorse the report for at least three visits which would be

made by him for the purpose of execution along with the respective dates. It

is stated in the affidavit that the deponent has no knowledge of the fact as to

how the bailable warrants dated 28th January, 2011 having

interpolation/tempering with next date of hearing as 28 th April, 2011 has

been sent.

11. Learned counsel for the bank in her affidavit besides the above facts

stated that she took no steps for issuance of warrants in terms of order dated

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 6 of 9 28th January, 2011. However, she filed the process fee for issuance of

process/warrants in terms of order dated 9th March, 2011 and that she does

not have any knowledge regarding interpolation/tampering on the bailable

warrants.

12. Pursuant to the affidavits received and in view of the apparent

interpolation and tampering on the summons purportedly sent by the Court

of learned Metropolitan Magistrate, this Court vide orders dated 5th and 9th

May, 2011 directed the DCP, Crime Branch to enquire into the matter as to

how the two summons were sent to Hon'ble the Chief Justice, Gujarat High

Court and who did the interpolation in the summons.

13. Pursuant to the directions of this Court DCP, Crime Branch submitted

several reports. As per the reports submitted it is revealed that one Kedar

Prasad Meena, Orderly in the Court of Ms. Meenu Kaushik, Metropolitan

Magistrate has done this interpolation. As he had been reprimanded several

times by the Metropolitan Magistrate, he felt insulted and in order to put the

Magistrate in trouble he decided to make interpolation in the

summons/warrants of the Court. He had joined one M/s Dev Typing

College, Raj Nagar-I where he used to learn typewriting. The typewriter,

which was used for interpolation has been seized and the FSL repot thereon

has already been received. Not only the typewriting on the summons

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 7 of 9 matched with the print of the typewriter which has been seized even the

typewriting on the envelops matched with the said typewriting machine of

M/s Dev Typing College. Investigate is complete, charge sheet is ready and

is likely to be filed shortly.

14. In view of the facts revealed and the action taken by the Crime Branch

in FIR No.227/2011 under Sections 420/467/468/120B IPC registered at PS

Crime Branch, dasti summons sent to the accused Babubhai Malabhai

Rabari, returnable on 23rd April, 2011 with the typewritten note on it

"Service be effected by Chief Justice, Gujarat High Court personally and

report on the date fixed" and the summons sent to Sunil Kumar Jain,

Director, M/s International Diamond Services Ltd. returnable on 28 th April,

2011 with the typewriting note "Chief Justice, Gujarat High Court is

directed to execute it immediately and report and appear on date fixed" are

treated as non-est being forged and fabricated.

15. Keeping in view the seriousness of matter and in order to avoid such

incidents in future, it would be appropriate to lay down guidelines to be

followed by the learned Presiding Officers and their subordinate staff so that

such incidents do not occur in future. It is, therefore, directed that in the

complaints under Section 138, Negotiable Instruments Act, the parties or

their advocates be asked to fill up the process form on their own while

Crl.Rev.P. Nos. 136/2011 & 149/2011 Page No. 8 of 9 signing on the left bottom corner owning up the responsibility for the

accuracy of the information entered therein. The date of appearance and the

date of the process issued will be subsequently filled by the Ahlmad before

getting the same signed from the Magistrate concerned. The warrants will

be continued to be issued as per the procedure prescribed earlier. No further

orders are required to be passed in the present petition. Trial Court records

be sent back forthwith. Interim order passed by this Court staying the

proceedings stands vacated. Registrar General is directed to ensure

circulation of these directions to all the concerned judicial officers.

16. The Petitions are disposed of accordingly.

                                                      MUKTA GUPTA,J
NOVEMBER 30, 2011
'vkm'




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