Delhi High Court
Arvinder Singh Bhatia vs Ashok Kumar Khattar on 16 November, 2018
$~16
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 16th November, 2018
+ CRL.M.C. 2574/2018 and Crl.M.A.9134-9135/2018
ARVINDER SINGH BHATIA .... Petitioner
Through: Mr. Asutosh Lohia, Advocate
with Mrs. Archana Saxena,
Adv. Ms. Radhika Nair &
Mr. Rohan Dewan, Advocates
versus
ASHOK KUMAR KHATTAR .... Respondent
Through: Mr. Narender Mann, SPP with
Mr. Manoj Pant, Advocate.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The respondents had instituted a criminal complaint case
(presently registered as CC No.536410/2016) in the year 2000 alleging
offence punishable under Section 138 of the Negotiable Instruments
Act, 1881 having been committed by the petitioner on the allegations
that he had issued two cheques each of Rs.5 lacs drawn on Bank of
India which, upon presentation, were returned unpaid and further that
in spite of the notice of demand the petitioner had failed to make
payment of the value of the said cheques.
2. The pre-summoning inquiry into the said criminal complaint
remained pending for almost sixteen years. By order dated
06.10.2016, the Metropolitan Magistrate found prima facie the offence
to be made out and, thus, issued process against the petitioner
summoning him to answer accusations for the said offence under
Section 138 of the Negotiable Instruments Act, 1881.
3. The petitioner challenged the above said order in the court of
Sessions invoking its revisional jurisdiction by criminal revision No.
380/2017. The said petition, however, was dismissed by the said court
on 24.03.2018. Thereafter, the petitioner has come up to this court
invoking the inherent power and jurisdiction under Section 482 of the
Code of Criminal Procedure, 1973 (Cr.P.C.), submitting that the
proceedings in the above mentioned case are in the nature of abuse of
the process of law and ought to be quashed.
4. Against the above backdrop, question arose as to whether the
petitioner having availed of the remedy of revision should be allowed
to have recourse to the petition at hand as a substitute for virtually a
second revisional challenge or scrutiny which is clearly barred under
Section 397 (3) Cr.P.C.
5. This Court in an almost similar fact-situation, taking note of the
decisions of the Supreme Court reported as Krishnan Vs. Krishnaveni,
(1997) 4 SCC 241; Rajinder Prasad Vs. Bashir, (2001) 8 SCC 522 and
Kailash Verma vs. Punjab State Civil Supplies Corporation & Anr.,
(2005) 2 SCC 571 and following similar view taken by a learned
single Judge of this Court in Surender Kumar Jain vs. State & Anr.,
ILR (2012) 3 Del 99 in absence of a special case being made has
earlier declined to interfere by the ruling (dated 03.07.2018) in
Crl.M.C. 164/2018 Ajay Maini vs. The State Govt. of NCT of Delhi &
Ors. in exercise of its extraordinary jurisdiction under Section 482
Cr.P.C.
6. Even otherwise, there is no merit in the contention raised by the
petitioner. It does appear that the petitioner having instituted the
criminal case in 2000 was not very diligent or vigilant in promptly
prosecuting the same. The copy of the proceedings recorded since
beginning till the date of summoning order do show neglect at several
stages on the part of the complainant. But then, it is also discernible
from the said proceedings that the case remained pending and stood
adjourned from time to time on a large number of dates for reasons
that cannot be attributed to the complainant.
7. The submissions of the petitioner that the original cheques were
not brought on record during pre-summoning inquiry may be correct.
This is what was recorded even in the proceedings on 19.01.2006 by
the Metropolitan Magistrate, the explanation of the complainant being
that the cheques had been "lost". The complainant had submitted that
for this reason he wanted to bring in evidence of the concerned Bank.
The Metropolitan Magistrate gave the opportunity to that effect and,
thus, Pawan Kumar (CW2), an official of the Bank was examined in
the pre-summoning inquiry, he having proved the certified copies of
the two cheques. Whether or not such certified copies can be used as
"evidence" at the trial which is to follow is a question which, in the
given facts and circumstances, ought to be left to be considered and
adjudicated upon by the concerned court.
8. There is no merit in the contention of the petitioner that the
opportunity for adducing pre-summoning evidence having once been
closed by order dated 28.07.2008, it was beyond the domain of the
Metropolitan Magistrate to give renewed opportunity for such
purpose, as was allowed on 06.10.2016. This cannot give rise to the
argument that the Metropolitan Magistrate had exercised power of
"review" which was not available to the criminal court. On the
contrary, the provision contained in Section 311 Cr.P.C. confers a
wide jurisdiction on the criminal court to permit such additional
opportunity for material witnesses to be examined "at any stage of
any inquiry, trial or other proceeding".
9. The petition is devoid of substance and is dismissed in limine.
This disposes of the pending applications as well.
R.K.GAUBA, J.
NOVEMBER 16, 2018
vk
