Delhi High Court
M/S Radlay Metal Products Pvt Ltd & ... vs State (Nct Of Delhi) & Anr. on 17 March, 2015
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order Pronounced on: March 17, 2015
+ CRL.M.C. 388/2015 & Crl. M.A. No.1520/2015
M/S RADLAY METAL PRODUCTS PVT LTD & ANR
..... Petitioners
Through Mr.Tannmaya Mehta, Adv. with
Mr.Rakesh Malhotra &
Mr.S.C.Verma, Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Through Mr.M.P.Singh, APP for the State.
Mr.Amit Sibal, Sr.Adv. with
Mr.Tanwar Mir & Mr.Govind Rishi,
Advs. for R-2.
+ CRL.M.C. 390/2015 & Crl. M.A. No.1524/2015
M/S RADLAY METAL PRODUCTS PVT LTD & ANR
..... Petitioners
Through Mr.Tannmaya Mehta, Adv. with
Mr.Rakesh Malhotra &
Mr.S.C.Verma, Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Through Mr.M.P.Singh, APP for the State.
Mr.Amit Sibal, Sr.Adv. with
Mr.Tanwar Mir & Mr.Govind Rishi,
Advs. for R-2.
+ CRL.M.C. 391/2015 & Crl. M.A. No.1526/2015
M/S RADLAY METAL PRODUCTS PVT LTD & ANR
..... Petitioners
Crl. M.C. No.388/2015 & 6 other petitions Page 1 of 13
Through Mr.Tannmaya Mehta, Adv. with
Mr.Rakesh Malhotra &
Mr.S.C.Verma, Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Through Mr.M.P.Singh, APP for the State.
Mr.Amit Sibal, Sr.Adv. with
Mr.Tanwar Mir & Mr.Govind Rishi,
Advs. for R-2.
+ CRL.M.C. 394/2015 & Crl. M.A. No.1532/2015
M/S RADLAY METAL PRODUCTS PVT LTD & ANR
..... Petitioners
Through Mr.Tannmaya Mehta, Adv. with
Mr.Rakesh Malhotra &
Mr.S.C.Verma, Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Through Mr.M.P.Singh, APP for the State.
Mr.Amit Sibal, Sr.Adv. with
Mr.Tanwar Mir & Mr.Govind Rishi,
Advs. for R-2.
+ CRL.M.C. 389/2015 & Crl. M.A. No.1522/2015
M/S RADLAY METAL PRODUCTS PVT LTD & ANR
..... Petitioners
Through Mr.Tannmaya Mehta, Adv. with
Mr.Rakesh Malhotra &
Mr.S.C.Verma, Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Through Mr.M.P.Singh, APP for the State.
Crl. M.C. No.388/2015 & 6 other petitions Page 2 of 13
Mr.Amit Sibal, Sr.Adv. with
Mr.Tanwar Mir & Mr.Govind Rishi,
Advs. for R-2.
+ CRL.M.C. 392/2015 & Crl. M.A. No.1528/2015
M/S RADLAY METAL PRODUCTS PVT LTD & ANR
..... Petitioners
Through Mr.Tannmaya Mehta, Adv. with
Mr.Rakesh Malhotra &
Mr.S.C.Verma, Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Through Mr.M.P.Singh, APP for the State.
Mr.Amit Sibal, Sr.Adv. with
Mr.Tanwar Mir & Mr.Govind Rishi,
Advs. for R-2.
+ CRL.M.C. 395/2015 & Crl. M.A. No.1536/2015
M/S RADLAY METAL PRODUCTS PVT LTD & ANR
..... Petitioners
Through Mr.Tannmaya Mehta, Adv. with
Mr.Rakesh Malhotra &
Mr.S.C.Verma, Advs.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Through Mr.M.P.Singh, APP for the State.
Mr.Amit Sibal, Sr.Adv. with
Mr.Tanwar Mir & Mr.Govind Rishi,
Advs. for R-2.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
Crl. M.C. No.388/2015 & 6 other petitions Page 3 of 13
MANMOHAN SINGH, J.
1. By this order, I propose to decide all the above 7 petitions filed
by the petitioners under Section 482 Cr.P.C. for setting-aside the
order dated 23rd January, 2015 passed by the Additional Sessions
Judge/ FTC(West), Tis Hazari, Delhi, in Criminal Revision
Nos.02/2015, 03/2015, 04/2015, 05/2015, 06/2015, 07/2015 &
08/2015.
2. The facts of the matter are that respondent No.2 had filed a
complaint against the petitioners, alleging that they have committed
an offence under Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as the "Act") due to dishonour of cheques. It
is the case of the said respondent that all the cheques were issued
as post-dated cheques and petitioner No.2 assured and promised
that they have issued PDC for each of the consignments and the
same would be honoured on the date of presentation.
3. The Trial Court summoned the petitioners. Notice under
Section 251 Cr.P.C. for the offence punishable under Section 138 of
the Act was issued. Thereafter, the statement of the
complainant/respondent No.2 was recorded. The statement of the
petitioners and then the defence evidence was recorded. The
petitioners examined Mr.Naresh Kakkar as DW-1, Mr.Vir Pal Singh
as DW-2, Mr.Vikas Sehrawat as DW-3, Mr.Pradeep Raikhi as DW-4,
Mr.Kamal Ahuja as DW-5 and Mr.Narender Singh as DW-5.
4. When the matters were at the final stage, the applications for
leading further evidence under Section 45 of the Evidence Act, 1872
were filed on behalf of the petitioners, to call the Handwriting Expert.
In the applications, it was stated by the petitioners that the cheques in
question were handed over to respondent No.2 as "undated
Advanced Security Cheques"; those were not the post-dated cheques
and since the handwriting difference on the cheques between
'handwriting of date on the cheque' as compared to 'handwriting on
the body of the cheque' is apparent on all the cheques, the
petitioners wanted to call the handwriting expert in support of their
case.
5. The prayer made in the applications was not allowed by the
Trial Court on the reasons given in the common order dated 24th
December, 2014. The relevant extracts of the said order, while
dismissing the above said applications reads as under:-
"In so far as the application for examination of
handwriting on the cheques is concerned, again I do not
see merit in the submission of the accused. The accused
has already admitted his signatures on the cheques in
question and even other particulars except the date. The
defence is that the cheques in question were undated
security cheques in which the date was filled by the
complainant. It is also not in dispute that the cheques in
question were given by the accused to the complainant.
Thus the manner in which the cheques in question came
into the possession of the complainant is also not
suspect. It is established law that the holder of a cheque
has authority to fill its particulars and the accused has
the liberty to establish his contention that the cheques
were in fact security cheques by adducing other relevant
evidence. Reliance is placed upon the judgment in Ravi
Chopra vs State & Anr., Crl. M.C. 5211/2006 & Crl.
M.A. No. 8864/2006, wherein it was held that
"where the accused facing the trial for the offence
u/s 138 is disputing the signature on the cheque
itself, then this is a permissible defence within the
scope of Section 138 of NI Act but where the
signature are admitted, although the cheques are
issued in blank there is a implied authority given to
the payee to fill up the instrument. Section 20 of NI
Act also say so. Hence, there is no requirement for
sending the cheque for the opinion of handwriting
expert for proving the same. Numerous situations
can be thought of where the handwriting and the ink
can differ. For instance when an entire cheque is
typed as to its material particulars, and the signature
is in the handwriting of the drawer, such cheque and
hardly be said to be void for that reason."
6. The said order passed by the Trial Court was challenged by the
petitioners by way of filing the criminal revisions. As the impugned
order was common in all the matters, after hearing, the Additional
Sessions Judge/FTC (West), Tis Hazari, Delhi dismissed all the 7
criminal revisions by common order dated 23rd January, 2015. Para
9 of the said order reads as under:-
"9. Keeping in view the submissions and the facts, I
found that the petitioner/respondent when appeared in
the witness box, admitted that the cheques were filled
including the amount and duly signed. It is also admitted
that the cheques amount is according to the bill amount
i.e. payment is made bill to bill. He only dispute that date
is not in his handwriting. But in my opinion the Trial
Court has rightly held in view of the judgments of Delhi
High Court that if all other facts are admitted i.e. the
cheques was issued in the name of the complainant,
amount filled, duly signed, even the liability is admitted
as the record shows that the respondent/petitioner made
an application that he is ready to make the payment of
the cheque amount and he only disputes that the date is
not filled by him then that is no defence as per judgment
of Hon.High Court of the Delhi and there is no
requirement of sending the cheques for opinion of Hand
writing Expert for establishing the same. So far
judgment relied upon by the counsel for the petitioner is
concerned, those are not applicable in the facts and
circumstances of this case. So far as the judgment
T.Nagappa Vs. Y.R.Mualidhar, there the dispute was that
the cheques was issued in 1999, whereas the
complainant was filled in 2004. The expert opinion was
required only about the age of the ink and to establish
the fact that it was a security cheque which given about
five years back, here that is not the defence. Hence this
judgment is not applicable. So far as the other judgment
is concerned that only speaks of that cheques if issued
as security would not come within the purview of Section
138 of the Negotiable Instruments Act. But here it is an
admitted fact that the entire body of the cheque was filled
by the revisionist and the cheque amount tallies and co-
relates with the bills i.e. the cheques issued against
specific bills. Keeping in view all these facts in my
opinion trial court has rightly dismissed the application.
There is no merit in the revision. The same is dismissed."
7. After dismissal of all the 7 criminal revisions, the petitioners
challenged the said order by filing of the above said 7 petitions under
Section 482 Cr.P.C. for setting-aside the impugned order dated 23rd
January, 2015. When the matters were listed first time before this
Court on 2nd February, 2015, the following order was passed:-
"Petitions were argued for some time by Mr. Tanmay
Mehta, learned counsel appearing on behalf of the
petitioners. When a suggestion was made by the learned
counsel for the petitioner to settle the disputes Mr.
Naresh Kakkar, petitioner No.2/Director of petitioner
No.1 who is present in person submits that without
prejudice to his rights, the petitioner No.1 is ready to pay
the cheque amount along with interest @ 6% p.a. to the
complainant from the date of amount due till the date of
payment. He further states that in case the complainant
is not ready to accept the proposal then the matter be
considered on merits and the said proposal not be
treated as an admission of liability on the part of the
petitioners.
In view of the statement made by petitioner
No.2/Director of petitioner No.1, issue notice to
respondent No.2, returnable on 27th February, 2015.
Proceedings in the Court below shall remain stayed
till further orders.
It was clarified to the petitioner that as far as the
interest component is concerned, as suggested, the
same shall be considered by the Court on the next date."
8. It was recorded in the subsequent order dated 3rd March, 2015
that the settlement is not possible, as Mr.Amit Sibal, learned Senior
counsel appearing on behalf of respondent No.2 has informed the
Court that the said respondent has been paying interest to the Bank
with regard to the transactions @ 15% per annum, thus the offer
made by the petitioners to receive the cheques amount along with
interest @ 9% per annum maximum is not acceptable to his client.
At the same time, the learned counsel for the petitioners is not
agreeable to pay the interest @ more than 9% as suggested by his
clients and he requested that the petitions be decided on merits. This
Court is left with no other option but to decide the abovementioned
matters on merits.
9. The petitioners are not denying the fact that there was a
commercial transaction between the parties. I have been informed
by the respondent No.2 that the civil suit for recovery of the amount
filed by the said respondent against the petitioners are also pending
for recovery of huge amount before this Court. It is the admitted case
of the petitioners before this Court that the cheques in question have
been signed and all other particulars were also filled by the
petitioners except the dates. It has also been noticed that the
petitioners had earlier challenged various orders by raising the
different pleas about the territorial jurisdiction as well as authority of
respondent No.2 who has filed the complaints. The said orders have
been challenged upto this Court and all the quashing proceedings
have been dismissed. In one such groups of quashing proceedings,
which were dismissed on 12th February, 2014, the directions were
issued by this Court to the Trial Court to decide the cases
expeditiously and preferably within 6 months and in case, for any
reason the said complaints are not decided within the said period, to
decide the complaints within a period of one year.
10. Admittedly, 6 months as well as one year period has already
been expired. In between, after passing the said order on 12th
February, 2014, another application was filed by the petitioners. The
Trial Court has partly allowed the said application allowing the
petitioners to summon the witness No.7 or in the alternative, to place
on record certified copies.
11. As far as the applications filed by the petitioners under Section
45 of the Evidence Act are concerned where the petitioners have
asked to call the Handwriting Expert, the Trial Court has dismissed
the same on 24th December, 2014. The criminal revisions against the
said order were also dismissed on merits by the impugned order
dated 23rd January, 2015. At present, this Court does not wish to
decide the other disputes on merits except to consider the order of
the Trial Court as well as the Revisional Court who have passed the
detailed orders on the applications filed by the petitioners to summon
the Handwriting Expert. This Court also does not want to express
any opinion on merits, as the matters are at the final stage before the
Trial Court.
12. Mr.Tanmay Mehta, learned counsel for the petitioners has
made his submissions, by alleging that the cheques in question were
undated and the same were issued as Advanced Security Cheques;
those were not the post-dated cheques. Since the same were
undated and were issued for the purpose of security, the complaints
filed by respondent No.2 under Section 138 of the Act are not
maintainable. In order to compare the handwriting on the body of the
cheques with the dates filled, it is necessary that the prayer made in
the applications under Section 45 of the Evidence Act ought to have
been allowed by the Trial Court. He has referred various decisions in
support of his submissions and particularly, he has heavily relied
upon the case of T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633.
13. On the other hand, Mr.Amit Sibal, learned Senior counsel
appearing on behalf of respondent No.2 has raised an objection
about the maintainability of the present petitions. He says that since
the revision petitions have already been dismissed by the Additional
Sessions Judge, the second revision in the garb of the quashing
proceedings is not maintainable. There is no provision of second
revision petition as Section 397(3) Cr.P.C.bars the same.
14. On merits, his argument is that all particulars of the cheques
are filled by the petitioners and those bear the signatures thereon of
the petitioners which are not denied by them. He further states that
the cheques amount tallies with the bills which are issued against the
specific bills. The said fact has been admitted by the petitioners in
their evidence. The filling-up of the date is not much material if the
other details are admitted by the petitioners. He submits that in the
present cases, there is hardly any gap of period of time, hence the
question of knowing about the age of ink used on the cheques does
not arise. He refuted the argument of the learned counsel for the
petitioners with regard to the transfer of the impugned transactions
amount through RTGS, by stating that out of many transactions part
amount worth less than 25% amount was transferred by way of
RTGS and the complaints amount has not been paid or transferred
by the petitioners by way of RTGS. The arguments are totally vague
and after-thought; there is no requirement for sending the cheques
for opinion of Handwriting Expert as the same are tallying with the
amount against the bills issued by respondent No.2. The cheques
amount is due which was not cleared by the petitioners who are now
deliberately and intentionally applying all tactics to delay the decision
in the matters and are raising all types of objections under the sky.
15. It is an undisputed fact in the present matters that the
Revisional Court dismissed the petitions of the petitioners. Second
Revision did not lie to the High Court in view of the provisions of
Section 397(3) of Cr.P.C. Section 397(3) bars a second revision
application by the same party. It is now well settled that the inherent
powers under Section 482 of the Cr.P.C. cannot be utilised for
exercising powers which are expressly barred by the Code. However,
at the same time, this Court is conscious about the fact that if there is
grave miscarriage of justice and abuse of the process of the Court or
required procedure has not been complied with by the Metropolitan
Magistrate, the High Court in its jurisdiction under Section 482 CrPC
can correct the grave miscarriage of justice under special
circumstances.
16. In view of the facts and circumstances explained and the
findings arrived at by the two Courts below, I do not think that the
present cases are fit one where any inference can be drawn that
there is any grave miscarriage of justice done to the petitioners by
abusing the process of law. There is no infirmity in any of the orders.
17. As far as the judgment referred by Mr.Mehta in the case of T.
Nagappa (supra) is concerned, the same has been rightly
distinguished by the Trial Court as there was dispute about the date
and year of issuance of cheque. The contention of the accused was
that the same was issued in 1999 though the complainant alleged
that it was filled in 2004. Therefore, the opinion was sought in order
to know about the age of the ink as that Court may draw inference
whether it was a security cheque or not. Therefore, the request was
allowed. No doubt, the Court under these circumstances can
exercise its discretion to pass such orders, but I am of the view that it
depends on case to case basis. Under these circumstances, I am
not inclined to exercise my discretion in the present matters in view of
the facts of the present cases. The petitions are accordingly
dismissed.
18. The Trial Court to decide the complaints expeditiously.
19. Pending applications also stand disposed of.
20. No costs.
(MANMOHAN SINGH)
JUDGE
MARCH 17, 2015
