Delhi High Court
Virkaran Awasty vs State Of Nct Of Delhi on 1 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2229/2017
Order reserved on: 26th October,2017
Order pronounced on: 1st November,2017
VIRKARAN AWASTY ...Petitioner
Through: Mr. Vikas Pahwa, Senior Advocate, with
Mr. Neeraj Chaudhri, Ms. Kinnori
Ghosh, Ms. Kanika Sodhi, Mr. Karan
Khanuja & Ms. Sakshi Aggarwal,
Advocates.
versus
STATE OF NCT OF DELHI .... Respondent
Through: Mr. Mukesh Kumar, APP for the State,
Mr. Vikram Panwar with Mr. Ashok
Sagar, Advocates for the complainant.
CORAM:
% HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. By way of the present petition filed under Section 482 of The Code
of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') the
petitioner seeks quashing of order dated 05.05.2017 passed by the
Additional Session Judge (hereinafter referred as 'ASJ'), South,
Saket Courts, whereby the revision petition titled "Vikram Awasty
v. State" Crl. Rev. No. 8356/2016 and also order dated 06.08.2016
whereby the learned ACMM declined to cancel the Open
Non-Bailable Warrants.
2. The brief facts of the present case are that the complainant/Hassad
Food Company lodged an FIR against the petitioner on 03.12.2014
at PS EOW, wherein it was mentioned that the complainant is a
company based in Netherland who on misrepresentation made by
the petitioner and the Standard Chartered Pvt. Equity Limited (I) &
(II) (SCPE), in the financial accounts and with regard to the level
of stock of his company (worth approx. Rs.800 crores), was
induced to invest in his company approximately to the tune of
Rs.750 crores. The complainant acquired 69.5% of the share of the
petitioner's company. The petitioner also availed various loan
facilities from Consortium of Banks as working capital loans,
packing credit and to build a raw material inventory. Later when
Deloitte Haskins and Sells (Deloitte) submitted its incomplete audit
report in the year 2013 stating the reason to be 'lack of details of
actual inventory, not being allowed to access the sites, non
cooperation and lack of transparency and further, the default in
repaying the credit facilities to the creditors', that the suspicion
was created in the mind of the complainant. Thereafter, the
complainant appointed Dr. Amin Controllers Private
Limited(Surveyor) to verify the inventory who after investigation
revealed that only stock of rice/inventory worth 3-5 million
(INR 50 crores) was available in the warehouse of the company
whereas substantial bags were filled with husk and wooden pallets
to give an impression that the warehouse was filled with stocks.
The complainant filed a complaint on account of being defrauded
by the petitioner. The petitioner joined the investigation in the year
2015 and thereafter during the pendency of the investigation he
shifted to UK and failed to join the investigation and NBWs were
issued against him by the Trial Court. The order dated 06.08.2016
was challenged by the petitioner by way of revision petition in the
court of learned ASJ who further dismissed it on the ground of
maintainability of revision against an interlocutory order. Hence,
the present petition.
3. Mr. Pahwa, learned Senior Counsel for the petitioner contends that
the learned ACMM had erred in dismissing the application seeking
cancellation of NBWs as the order passed on 06.08.2016 is an
interlocutory order; that the issuance of NBWs was challenged by
the petitioner by moving an application under Section
70(2) Cr.P.C. which was dismissed on 06.08.2016; that the
issuance of NBWs against the petitioner by the concerned court
was not communicated to him by the Investigating Officer; that
only documentary evidence is required to proceed with the
investigation, therefore, the presence of the petitioner is not
required; that no custodial interrogation of the petitioner is
required; that the petitioner has been participating in the
investigation and he has been interrogated in detail for 10 hours by
EOW and submitted 5000 pages dossier to the EOW; that the
medical condition of the petitioner does not allow him to travel;
that the petitioner undertakes to join the further investigation
through video-conferencing.
4. In support of his contentions, the counsel for the petitioner has
relied upon several judgments namely Amar Nath v. State of
Haryana reported in (1977) 4 SCC 137, Inder Mohan Goswami v.
State of Uttranchal reported in (2007) 12 SCC 1, State through
CBI v. Dawood Ibrahim Kaskar reported in (2000) 10 SCC 438,
State of Maharashtra v. Dr. Praful B. Desai reported in (2003) 4
SCC 601, Prem Cashew Industries v. Zen Pareo reported in
(2000) 55 DRJ.
5. On the other hand, Mr. Mukesh Kumar, learned APP for the State
opposed the present petition and contended that the petitioner has
been evading investigation despite issuance of notices dated
21.12.2015, 23.12.2015, 30.12.2015 for his personal appearance;
that the proceeding under Section 82 Cr.P.C. has been issued
against the petitioner; that red corner notice has also been sent to
the Interpol for publication of his name; that there are various
proceedings in different courts pending against the petitioner and
his family members; that the trial is at the initial stage of the
investigation for which the presence of the petitioner in person is
mandatory and the same cannot be exempted.
6. The submissions made by the both the parties have been heard and
the records have been perused.
7. After giving careful consideration to the entire facts, it is seen that
the main contention of the learned Senior Counsel for the petitioner
is that the order dated 06.08.2016 is a final order and not an
interlocutory order as it affects the right of the petitioner and
therefore prays for setting aside the order dated 05.05.2017 where
by the order dated 06.08.2016 his application for setting aside had
been dismissed. It is relevant to understand the meaning of
interlocutory order. An Interlocutory Order (also known as an
Interim Order) means the decision of the Court which does not deal
with the finality of the case but settles subordinate issues relating to
the main subject matter which may be necessary to be decided
during the pendency of the case due to the urgency of those issues.
It was held by the Apex Court in Central Bank Of India vs Shri
Gokal Chand reported in 1967 AIR 799 that "All these
interlocutory orders are steps taken towards the final adjudication
and for assisting the parties in the prosecution of their case in the
pending proceeding; they regulate the procedure only and do not
affect any right or liability of the parties. The legislature could not
have intended that the parties would be harassed with endless
expenses and delay by appeals from such procedural orders." In
the present case, the presence of the petitioner for investigation
does not affect the rights of the party rather the coercive process
has been issued to procure his presence in person in order to
continue with the investigation process which has been delayed
since a number of years on account of his being not personally
present. It is observed that during the pendency of the investigation
various notices were issued against the petitioner for his personal
appearance but he had avoided the investigation on one pretext or
the other. Perusal of the record further transpires that the petitioner
joined the investigation only once in August 2015 and thereafter
despite issuance of notice dated 21.12.2015, 23.12.2015 and
30.12.2015, the petitioner chose not to appear and replied only via
emails and couriers.
8. The power of this court while exercising its power under Section
482 Cr.P.C is well settled which states that the High Court while
exercising its inherent power should interfere only in rare cases
where it is satisfied that there is abuse of process of court or to
secure interest of justice.
9. In the present case, it is observed that the Trial Court had issued
NBWs after proper consideration of the facts and circumstances of
the present case and subsequently, the order of the court dated
06.08.2016 dismissing the application of the petitioner for
cancellation of NBWs is a well reasoned order. Keeping in view
the above, it is observed that the order dated 06.08.2016 is an
interlocutory order as it does not finalise the complete proceedings
pending before the Trial Court and thus no criminal revision is
maintainable in view of Section 397(2) of the Code
of Criminal Procedure against the order dated 06.08.2016.
Therefore, the interference of this court in the order dated
06.08.2016 and subsequent order dated 05.05.2017 while invoking
its inherent power is not called for.
10. As far as the contention that the petitioner has joined the
investigation in August 2015 and thereafter he had joined the
investigation on several occasions when notices were served upon
him and to join the investigation through video-conferencing, it is
observed that the case in hand is at its initial stage for which
interrogation of the petitioner in person is necessary. During the
process of interrogation, the investigating agency may come across
certain relevant facts and recoveries which are germane and crucial
for concluding the investigation. In Narayan Sai alias Narayan
Asharamji Harplani v. State of Haryana reported in (2016 SCC
OnLine P&H 10966, it is observed that:-
"Apart from this, the allegations against the petitioner
are very serious in nature and therefore, this Court has
no hesitation to conclude that the plea of the petitioner
that he be interrogated through video-
conferencing cannot be accepted. Chapter XII CrPC
deals with information to police and their powers to
investigate. Therefore, the police is required to adhere to
the very provisions of law as enshrined under Chapter
XII CrPC. Even otherwise, the powers of a Magistrate
under the provisions of Section 167(2)(b) CrPC are
discretionary and that too during trial and one cannot
claim as a matter of right that his evidence be
recorded through video-conferencing, especially when
serious allegations have been levelled against the
accused. In case the prayer of the petitioner
for investigation through video link is accepted, the very
purpose of police investigation would be defeated.
Therefore, this Court has no hesitation to conclude that
filing the present petition is nothing but a clear abuse of
the process of law. The petitioner is not entitled for relief,
as prayed for. He has been named as an accused in the
FIR and therefore, he is bound to cooperate in
the investigation. In case an accused is allowed to be
interrogated through the videoconference in the offences,
like the present one, the very purpose of
police investigation would be frustrated."
11. On the basis of the above observations, it is viewed that the
impugned order dated 05.05.2017, is a well reasoned order and the
same is upheld.
12. Accordingly, the present petition is dismissed.
13. However, it is made clear that the observations made hereinabove
shall not be taken as an expression on the merits of the case.
SANGITA DHINGRA SEHGAL, J
NOVEMBER 1, 2017
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