Delhi High Court

Angle Infrastructure P.Ltd. vs State (Nct Of Delhi) & Anr. on 13 January, 2016

Author: P. S. Teji

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CRL.M.C. 5096/2015 & Crl.M.A. 18348/2015
                                  Date of Decision : January 13th, 2016

    ANGLE INFRASTRUCTURE P.LTD.             ..... Petitioner
                 Through Mr.Akhil Sibal,Ms.Bina Gupta,
                         Advocates.

                         versus

    STATE (NCT OF DELHI) & ANR.                 ..... Respondents
                  Through   Mr.Satya Narain, Additional Public
                            Prosecutor for the State.
                            Mr.R.P. Luthra, Mr.Saurabh Luthra,
                            Advocates for respondent No.2.


           CORAM:
           HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The present petition under Section 482 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") has been

filed by the petitioner for setting aside the order dated 24.11.2015,

passed by the learned Metropolitan Magistrate, New Delhi vide which

the application of the petitioner for leading evidence and summoning

the witnesses was dismissed.

2. Factual matrix, emerges from the record, is that the petitioner is

a company and is engaged in the business of developing real estate

projects and deals with other allied activities. Respondent No.2-

Ashok Manchanda is the sole proprietor of M/s Capital Builders. The

respondent no.2 had filed a criminal complaint under Section 200

Cr.P.C. for commission of the offence punishable under Section 138

of the Negotiable Instruments Act against the petitioner/accused. It

was alleged in the complaint that a dispute arose between the

respondent no.2-complainant and the petitioner/accused due to which

the respondent no.2-complainant preferred a petition OMP

No.420/2013. During the pendency of the said petition, the parties

entered into a settlement dated 29.10.2013. As per the terms of the

said settlement, the petitioner/accused was required to pay Rs.24

crores within 90 days of the said settlement with an interest @ 15%

per annum to the complainant. The petitioner/accused failed to

arrange sufficient funds in the account maintained by him and as a

result of insufficiency of funds, all the six cheques issued in favour of

the complainant/respondent no.2 were returned unpaid. The complaint

was filed for the return of three cheques of Rs.4 crores each having

Nos.000143, 000146 and 000147 drawn on HDFC Bank. A statutory

notice dated 10.02.2014 was sent by the complainant, but despite its

receipt, the petitioner/accused failed to make the payment, thus the

complaint was filed.

3. During the pendency of the trial, the petitioner/accused moved

an application dated 23.10.2015 for leading defence evidence and for

summoning eight witnesses. The said application was dismissed by

the Trial Court vide impugned order dated 24.11.2015. It was

observed by the Trial Court that all the witnesses mentioned in the

application were required for producing records to establish the fact

which took place prior to execution of settlement agreement dated

29.10.2013. It was further observed that both the parties were well

aware of the dispute pertaining to the land in question as well as the

pending litigation at the time of entering into the settlement

agreement. The operative portion of the impugned order reads as

under :

"The examination of the proposed witnesses is not necessary to establish the defence of the accused that proceeding u/s 138 N.I. Act are not maintainable in respect of the impugned cheques by virtue of clause II of settlement agreement and therefore, request of the accused persons to summon the witnesses mentioned in serial no: i to viii is declined.

Accused persons are at liberty to file appropriate application for their examination u/s 315

Cr.P.C."

4. Feeling aggrieved by the aforementioned impugned order dated

24.11.2015, the present petition has been preferred by the petitioner.

5. Arguments advanced by the learned counsel for the petitioner

are that the witnesses cited by the petitioner are necessary for proving

the defence of the accused who are either party to the Development

Rights Agreement (DRA) dated 05.06.2012 or the official witnesses.

The complainant has admitted that the full and final agreement dated

29.10.2013 was executed as there was some dispute with respect to

the DRA. It is further argued that there was no legally enforceable

debt and the cheques have been misused by the complainant. Counsel

for the petitioner wants to further interpret the agreement dated

29.10.2013 by examining those witnesses.

6. In support of the above contentions, learned counsel for the

petitioner relied upon judgment of Allahabad High Court in case of

Asif Hussain v. State of U.P. and another, (2007) 53 AIC 629 (All)

in which it was observed that the order passed under Section 311

Cr.P.C. refusing to summon witnesses, sought to be called by the

accused, is a purely interlocutory order from the point of view of the

accused-applicant and no revision against the same is maintainable.

7. On the other hand, learned counsel for the respondent no.2 has

argued that there is no dispute with regard to the agreement dated

29.10.2013 which is a part of the Trial Court record. It is further

argued that there is no need to prove the contents of the said

agreement by producing oral evidence on the record and the

petitioner/accused is trying to delay the proceedings.

8. There is no dispute with regard to law propounded in the

judgment cited by the petitioner to the effect that the order passed

under Section 311 Cr.P.C. is an interlocutory order and thus revision

does not lie against the same.

9. So far as the Full & Final Settlement Agreement dated

29.10.2013 entered into between the petitioner-herein and M/s Capital

Builders (respondent no.2-herein) is concerned, a bare perusal of the

same shows that the petitioner undertook to pay a sum of Rs.45 crores

to the respondent no.2-herein in the manner as provided in the said

agreement. As per clause (2) of the said agreement, in case of default

in payment in terms of settlement agreement, rights and liabilities of

the parties under DRA shall stand revived. As per annexures to the

said settlement, the petitioner-herein issued the post-dated cheques in

favour of the respondent no.2-herein.

10. The contention of the petitioner is that the witnesses which it

seek to examine are important and material witnesses. It is matter of

record that the settlement entered into between the parties is already a

part of the record as it has been placed on record by the petitioner/

accused. The petitioner seeks to examine eight witnesses to prove the

contents of the agreement which cannot be permitted for the reasons

that the oral testimony is not required to prove the contents of a

document. When it is an admitted case of the petitioner itself that the

agreement has already been placed on record, there is no need to

examine any witness to prove its contents.

11. I have heard the arguments advanced from either side. The

contention made by the counsel for the petitioner is that eight

witnesses are required to be examined to interpret the contents of the

agreement dated 29.10.2013, although the same is the part of the

record.

12. As per Section 91 of the Indian Evidence Act, 1872 (hereinafter

referred to as "the Act"), when the terms of an agreement have been

reduced to the form of a document, no evidence shall be given in

proof of the terms of such an agreement, except the agreement itself.

Section 91 of the Act is reproduced as under :

"91.Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."

13. As per Section 92 of the Act, it provides that when the terms of

any contract required by law to be reduced to the form of a document,

no evidence of any oral agreement shall be admitted as between the

parties to any such document for the purpose of contradicting,

varying, adding to or subtracting from its terms.

14. In Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418, the

Hon'ble Apex Court clearly defined the scope and object of Sections

91 & 92 of the Act. Relevant para from the judgment reads :

"It is likewise a general and most inflexible rule

that wherever written instrument are appointed, either by the requirement of law or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. it is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence.

In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. having regard to the jural position of Sections 91 and 92 and the deliberation omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing."

15. As discussed above and the law laid down in Roop Kumar's

case (supra), this Court is of the considered opinion that whenever a

written agreement has been proved or admitted or placed on record,

only documentary evidence can be admitted for proving such an

agreement and no oral evidence can be placed on record as barred by

Section 91 of the Act. By Section 92 of the Act, the legislature has

prevented oral evidence being adduced for the purpose of varying the

contract as between the parties to the contract. In the present case, the

witnesses which the petitioner seek to examine for proving the

agreement dated 29.10.2013 which is a part of the record, has already

been admitted by the complainant. Thus, it is apparent from the

record that there is no requirement to examine the witnesses as sought