Delhi High Court
Kuldip Tyagi vs Abhay Kumar Mishra on 15 May, 2017
$ 18 to 22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 15th May, 2017
+ CRL.L.P. 675/2015
KULDIP TYAGI ..... Petitioner
Through: Mr. Vineet Chadha and Mr. Ajay
Kumar, Advocates
versus
ABHAY KUMAR MISHRA ..... Respondent
Through: Mr. Sameer Chandra and Mr.
Rajesh Kaushik, Advocates
+ CRL.L.P. 684/2015
RAMESH YADAV & ANR ..... Petitioner
Through: Mr. Vineet Chadha and Mr. Ajay
Kumar, Advocates
versus
HIRA PRASAD ..... Respondent
Through: Mr. Sameer Chandra and Mr.
Rajesh Kaushik, Advocates
+ CRL.L.P. 685/2015
NARAIN SINGH & ANR ..... Petitioners
Through: Mr. Vineet Chadha and Mr. Ajay
Kumar, Advocates
versus
Crl.L.P. 675/2015 & connected matters Page 1 of 5
ABHAY KUMAR MISHRA ..... Respondent
Through: Mr. Sameer Chandra and Mr.
Rajesh Kaushik, Advocates
+ CRL.L.P. 686/2015
NARAIN SINGH & ANR ..... Petitioners
Through: Mr. Vineet Chadha and Mr. Ajay
Kumar, Advocates
versus
ABHAY KUMAR MISHRA ..... Respondent
Through: Mr. Sameer Chandra and Mr.
Rajesh Kaushik, Advocates
+ CRL.L.P. 687/2015 and Crl. M.A. 14757/2015
SOM DUTT & ANR ..... Petitioners
Through: Mr. Vineet Chadha and Mr. Ajay
Kumar, Advocates
versus
ABHAY KUMAR MISHRA ..... Respondent
Through: Mr. Sameer Chandra and Mr.
Rajesh Kaushik, Advocates
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. These criminal leave petitions arise out of similar orders passed
by the court of the Metropolitan Magistrate on 03.07.2015 and
01.08.2015 on similarly placed complaint cases presented by the
respective petitioners they being criminal complaint nos.120/6/13,
1190/6/14, 1203/6/14, 119/6/13 and 63/6/13, each alleging offence
under Section 138 of Negotiable Instruments Act, 1881, respecting
different cheques.
2. The respondent in criminal leave petition 684/2015, namely
Hira Prasad, is the father of the respondent in the other four criminal
leave petitions. Each of the said two persons, while contesting the
criminal cases in which they had been summoned took similar defence
plea, it being loss on account of theft of the cheque book containing
the cheque leaves in question duly signed, Hira Prasad (respondent in
Crl. Leave Petition 684/2015) having claimed such loss in 2006 while
Mr. Abhay Kumar Mishra (respondent in other four cases) having
claimed such loss in 2007 in identical fact situation. Each of these
respondents led evidence in defence, inter alia, to show that the loss
by way of thefts of the cheque books containing the concerned cheque
leaves have been not only reported to the police but also to the
concerned bank. In the case of Abhay Kumar Mishra, he had also
followed it up with a complaint in the court of the Metropolitan
Magistrate, it resulting in the first information report (FIR) no.1/12
having been registered in police station Dabri pursuant to the
directions of a Metropolitan Magistrate under Section 156(3) Cr. PC.
Hira Prasad did not get any formal FIR registered.
3. Each of these respondents entered into the witness box in their
own defence under Section 315 Cr. PC to affirm on oath the facts
concerning the theft. Copies of the documents in the nature of report
to the bank about the loss were submitted in the course of such
evidence. But, no formal proof about its receipt by the bank was
adduced at the trial by calling any official witness from the concerned
bank.
4. The learned trial Magistrate dismissed the complaints acquitting
the respondents. It is the said result based on identical reasoning in
the five judgments, which is questioned through the petitions whereby
leave is sought to file criminal appeals under Section 378(4) Cr. PC.
5. During the course of arguments, question arose as to the formal
proof of bank having been informed about the loss on account of theft
of the cheque leaves. The learned counsel for the respondent, on
instructions, submitted that the respondent would need and prays for
opportunity to adduce further evidence. He thus, fairly conceded that
without prejudice to his rights and defences, leave may be granted in
these cases and the criminal appeals be allowed and the judgments of
the trial court may be vacated relegating the parties to the stage of
defence evidence.
6. Thus, leave is granted. The criminal appeals shall be registered.
The pending application being Crl. M.A. 14757/2015 is disposed of.
Crl. A. ____________( to be numbered), Crl. A. ____________( to be
numbered), Crl. A. ____________( to be numbered), Crl. A.
____________( to be numbered) and Crl. A. ____________( to be
numbered)
7. In view of the above submissions, the appeals are allowed. The
impugned judgments are set aside. The criminal complaint cases from
which these matters arise shall stand restored on the file of the
concerned Metropolitan Magistrate who shall give further opportunity
to the respondents (accused) to lead further evidence in defence,
particularly by calling the necessary records of the concerned bank to
prove the instructions about stopping payment of the cheques on the
ground that the cheque books had been lost on account of theft. If the
respondents so desire, they may adduce further evidence, if any.
8. During the course of hearing, a request was also made on behalf
of the petitioners (complainants) for opportunity for further evidence.
In fact, an application under Section 191 Cr. PC has been moved in
Criminal L.P. 687/2015 to such effect. The complainant is given
liberty to move appropriate application before the concerned
Metropolitan Magistrate who shall grant necessary opportunity to the
complainant for such purposes as well.
9. The parties shall appear before the concerned Metropolitan
Magistrate for further proceedings in accordance with law on
10.07.2017. Needless to add, the respondents will be obliged to
furnish fresh bail bonds to regulate their presence in the further
proceedings before the trial court.
10. The appeals are disposed of in above terms.
11. The trial court records shall be returned with copy of this
judgment in each case.
Dasti.
R.K.GAUBA, J
MAY 15, 2017
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