Delhi High Court
Brigh.Krishna Nandan, Vsm ... vs State Govt. Of Nct Of Delhi & Ors. on 4 October, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2864/2012
% Reserved on: August 23, 2016
Decided on: October 04, 2016
BRIGH.KRISHNA NANDAN, VSM (RETD.) ..... Petitioner
Represented by: Mr. D.N. Goburdhun and Mr.
Prakash Kumar, Advocates.
versus
STATE GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Represented by: Mr. Ashok K. Garg, APP for
the State.
Ms. Arti Bansal, Advocate for
respondent No.2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
CRL.M.C. 2864/2012 and Crl. M. A. No.1427/2012 (Stay)
1. Brief background of the case is that the respondent No.2 filed a
complaint under Section 138 read with Section 142 of the Negotiable
Instruments Act, 1881 (in short 'NI Act') against the petitioner alleging that
her husband Captain Shambhu Prasad Sinha who retired as a pilot from
Indian Airlines was lured by the petitioner along with one Vikas Jain to
invest his savings and retiral benefits in their company M/s R.L.
Infrastructure (in short 'the company') of which the petitioner and Vikas Jain
were the Directors. Persuaded by the assurances of the petitioner and Vikas
Jain the respondent No.2 and her husband gave their entire savings
amounting to `38 lakhs by way of a cheque drawn by the husband of the
complainant Shambhu Prasad Sinha from their joint account in favour of the
company. The said cheque was encashed on 4th May, 2005. Since the
complainant's family was facing acute financial crises she and her husband
insisted on return of the amount of which only `5 lakhs were returned
however, `33 lakhs were not returned, despite promise to pay in two years
along with the interest of 18% with quarterly rests. After a lapse of two years
and repeated persuasions, without any interest, the petitioner issued seven
cheques for a sum of `33 lakhs from his personal account besides promising
payments towards accumulated interest on the said amount after a period of
six months of the cheque relating to the principal amount. When the seven
cheques were presented they were dishonored with the remarks 'insufficient
funds'. One of the cheuqe bearing No.858969 was returned with the memo
dated 18th September, 2009 bearing remarks 'mutilated'. However, cheque
No.858964 and 858966 were also returned with remarks 'insufficient funds'.
The respondent No.2 issued a legal demand notice dated 17 th September,
2009 which was dispatched vide registered AD and through courier on 19 th
September, 2009 and since the petitioner failed to pay the amount of `33
lakhs within 15 days, the complaint was filed.
2. During the course of proceedings Uma Sinha, respondent No.2 and her
husband Shambhu Prasad Sinha were examined and cross-examined
however, the document, that is, receipt dated 23rd September, 2005 was not
put to these witnesses on the plea that the same was not traceable with the
petitioner. When the statement of the petitioner under Section 313 Cr.P.C.
was in the process of being recorded, the receipt dated 23rd September, 2005
was filed stating that the same had been traced from the old company records
and an application under Section 311 Cr.P.C. was filed for recalling Uma
Sinha and Shambhu Prasad Sinha which was dismissed by the learned Trial
Court on 5th February, 2010. This order was challenged by way of revision
petition before the learned Additional Sessions Judge which was partly
allowed and Shambhu Prasad Sinha was recalled for cross-examination.
3. During the further cross-examination Shambhu Prasad Sinha denied
the signatures of Uma Sinha on the receipt dated 23rd September, 2005. The
petitioner had not challenged the order of revisional court denying re-
examination of Uma Sinha. Thus, after the further cross-examination of
Shambhu Prasad Sinha wherein he denied the signatures of Uma Sinha, the
petitioner again filed an application under Section 311 Cr.P.C seeking to
recall Uma Sinha which was dismissed by the learned Trial Court vide order
dated 2nd August, 2011. Revision petition filed against the said order was
also dismissed by the learned Additional Sessions Judge on 20th September,
2011. The two orders were challenged before this Court in Crl. Misc.
petition under Section 482 Cr.P.C. which was also dismissed.
4. Unfazed by all these orders, the petitioner again filed an application
for verification of the signatures of Uma Sinha on the receipt dated 23rd
September, 2009 through FSL. This application was dismissed vide order
dated 13th February, 2012. He also filed an application seeking permission
to get it verified on its own and take the photograph of the said receipt dated
23rd September, 2005 and seek opinion from a handwriting expert. This
application was dismissed by the learned Trial Court vide order dated 12 th
April, 2012 as not maintainable noting that it was not the duty of the Court to
collect evidence on behalf of the petitioner.
5. These orders dated 13th February, 2012 and 12th April, 2012 were
challenged in a revision petition which was dismissed vide the impugned
order dated 1st June, 2012. Hence the present petition.
6. When the present petition being Crl. M.C. No. 2864/2014 came up
before this Court on the first two dates, that is, 24 th August, 2012 and 29th
August, 2012, adjournment was sought on behalf of the petitioner. On the
third date, that is, 12th September, 2012 this Court noting the contention of
the learned Senior Counsel passed the following order:
"1. The learned senior counsel has stated that the
petitioner is interested in finding out a solution to the
entire dispute between him and the respondent no.2.
The petitioner is ready to deposit a cheque of `33 lacs
with the Registrar General of this Court and in lieu
thereof, the respondent no.2 shall return the share
certificate to him.
2. Let the amount of `33 lacs, as volunteered by the
learned senior counsel, be deposited with the Registrar
General of this Court by way of a draft and it shall be
kept in a fixed deposit for a short duration. The said
amount be deposited within three weeks.
3. List on 16.10.2012.
4. The learned senior counsel has assured the Court that
the trial court will be apprised of filing of the present
petition and the orders passed by the High Court."
7. On the next date before this Court, that is, 16th October, 2012 learned
counsel for respondent No.2 entered appearance and the following order was
passed:
"1. Mr.Chandra, learned counsel puts in appearance on
behalf of the respondent no. 2 and accepts notice.
2. Mr.Sharma, learned APP also accepts notice on behalf
of the State/R-1.
3. The learned counsel for the respondent no.2 has placed
on record a copy of the order dated 24.9.2012 passed by
the trial court, wherein, it has been reflected that the
learned trial court was to simply pronounce
the judgment on 24th September, 2012, however, the
same was deferred keeping in view the fact that the
present petition was filed.
4. Accordingly, the matter has now been listed on 18 th
October, 2012 for judgment/further proceedings. It is
prayed by the learned counsel that the trial court may be
permitted to pronounce the judgment so as to bring the
case to its logical end.
5. Mr.Tiku, learned senior counsel has stated that by the
pronouncement of the judgment, the present petition will
become infructuous. He has further stated that the case
being under Section 138 of the NI Act and he having
volunteered to deposit the draft for an amount of `33
lacs with the Registrar General of this Court, in order to
show his bona fide, the respondent should have been
willing to accept the said amount, as even after
conviction, the parties are permitted to compound the
offences. It has been further stated by him that he has a
draft of `33 lacs with him, however, the same could not
be deposited in terms of the earlier orders as the time
had expired and the registry has refused to accept the
same.
6. It has been prayed that the time be enlarged by a day or
so, so as to enable the petitioner to deposit the said
amount. He has stated that the amount shall be
deposited with the Registrar General of this Court by
18.10.2012.
7. I have considered the submissions. Having regard to the
fact that the trial court has reserved the judgment and
fixed the matter now for 18.10.2012, it may proceed
ahead with the matter in accordance with the law so as
to bring the same to its logical conclusion without being
influenced in any manner whatsoever by the pendency
of the present petition. However, needless to say that the
said decision which may be passed by the trial court will
be subject to the decision in the present petition. The
petitioner is permitted to deposit the amount of `33 lacs
without any prejudice to the rights and contentions of
the parties with the Registrar General of this Court
latest by 18.10.2012.
8. List before Court on 31.10.2012.
9. Dasti to both the parties."
8. The learned Trial Court has finally passed the judgment and convicted
the petitioner however, as per the interim order dated 16th October, 2012
passed by this Court, the judgment passed by trial court would be subject to
outcome of the present petition. Learned counsel for the petitioner submits
that this petition is thus required to be decided on merits.
9. The prayers in the present petition are recalling of the order dated 1 st
June, 2012 and permitting the petitioner to re-examine CW-1 Uma Sinha and
examination of the receipt dated 23rd September, 2005 by FSL to seek
opinion of signatures of Uma Sinha.
10. As noted above the petitioner initially filed an application for recalling
Uma Sinha and Shambhu Prasad Sinha which was dismissed by the learned
Trial Court on 15th February, 2011 and in a revision petition filed only
Shambhu Prasad Sinha was recalled. Thereafter the petitioner filed another
application seeking recalling of Uma Sinha which was dismissed by the
learned Metropolitan Magistrate on 2nd August, 2011 and the revision
petition challenging the said order was dismissed on 20th September, 2011.
Miscellaneous petition being Crl. M.C. No.3304/2011 filed by the petitioner
before this Court under Section 482 Cr.P.C. challenging the revisional order
dated 20th September, 2011 was also dismissed by this Court on 30th
September, 2011. Thus the order dismissing two applications for recalling
Uma Sinha has attained finality and the petitioner for third time cannot be
permitted to re-agitate the same issue and seek recalling of Uma Sinha.
11. As regards the plea of the petitioner, that the signatures of Uma Sinha
on the receipt dated 23rd September, 2005 be got verified by seeking an
opinion on signatures of Uma Sinha, it is pertinent to note that the
handwriting expert can only render the opinion on the basis of admitted
signatures or specimen signatures of Uma Sinha. Even though the receipt
dated 23rd September, 2005 according to the petitioner was recovered by him
when he was searching the old company records, the factum that the receipt
was executed was not his defense in the complaint. The defence of the
petitioner taken in his written statement and under Section 313 Cr.P.C. was
that the cheques were sent along with the proposed agreement and a personal
note and were not issued on account of any legal liability or outstanding dues
towards the complainant or her husband, but were given as an assurance to
the complainant.
12. Reliance of the learned counsel for the petitioner on the decision
reported as 1991 Supp (1) SCC 271 Mohanlal Shamji Soni vs. Union of India
& Anr. is misconceived. Indubitably as held in the decision, Section 311
Cr.P.C. is in two parts and the power to recall the witness has to be exercised
fairly, bonafidely, unarbitrarily with circumspection and in the exigency of
the situation when it appears, in the facts and circumstances to be essential
for a just decision of the case.
13. As noted above after the entire evidence was recorded the petitioner
brought up this receipt which was not even his case in the defence evidence
and by leading this evidence he is now trying to establish a new case
altogether and delay the proceedings.
14. I find no merit in the present petition. Petition and application are
dismissed.
Crl. M.A. No.2404/2016 (Release of amount by respondent No.2)
1. By this application the respondent No.2 seeks release of the amount of
`33 lakhs along with the interest that has accrued thereon, deposited by the
petitioner to show his bona fide without prejudice to the rights and
contentions of any of the parties with the Registrar General of this Court as
noted vide order dated 16th October, 2012. The petitioner has already been
convicted for offence punishable under Section 138 NI Act in the above
noted complaint and an appeal is pending before the learned Additional
Sessions Judge.
2. The amount of `33 lakhs with interest that has accrued thereon
deposited by the petitioner will be released to the respondent No.2 in case
the conviction of the petitioner is upheld by the learned Additional Sessions
Judge in the appeal filed by the petitioner.
3. Application is disposed of with the directions as noted above.
(MUKTA GUPTA)
JUDGE
OCTOBER 04, 2016
'vn'
