Final Order 3

Order Details: COPY OF ORDER
Pdf Text: Cr Rev 504/2023
KOMAL PATHAK
Vs.
SUNIL SHARMA
1
04.05.2024
O R D E R
Present: Sh. Ravi Chawla, Ld. Counsel for the petitioner.
Sh. Abhishek Sabharwal, Ld.Counsel for respondent.
1. Brief facts of the case are that the respondent herein had filed a
complaint case u/s.138 N.I. Act against the petitioner, alleging
that in the month of February 2014, petitioner approached the
respondent with a request for a for a friendly loan of Rs.85,000/-.
Considering the friendly relations, respondent granted the said
loan. In order to repay the said loan, the petitioner issued a
cheque bearing no. 079968 dated 31.05.2015 for an amount of
Rs.85,000/-. On presentation, the said cheque returned unpaid.
Respondent accordingly demanded the cheque amount via a legal
demand notice, which was duly served upon the petitioner, but
the payment was not made good within the statutory period.
Accordingly, respondent instituted the aforesaid complaint in
2014.
2. On 07.10.2023, the petitioner herein moved an application
seeking permission to take picture of the impugned cheque from
judicial file, for the purpose of comparison of the same with
admitted signatures of the petitioner by handwriting expert. Ld.
Trial Court observed that the application was moved belatedly
just to delay the proceedings. It also observed that the petitioner
had not disputed her signatures at the time of framing of notice
u/s.251 Cr.P.C. The application was, therefore, dismissed on the
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KOMAL PATHAK
Vs.
SUNIL SHARMA
2
even date. The said order has been challenged via the present
revision petition.
3. During the course of arguments, Ld. Counsel for the petitioner
has submitted that the Ld. Trial Court did not appreciate that even
though, the petitioner had admitted her signatures during the
framing of notice u/s.251 Cr.P.C., but in her cross-examination,
she categorically denied her signatures on the impugned cheque.
Continuing with the aforesaid arguments, Ld. Counsel for the
petitioner has also taken reference of Section 73 of Indian
Evidence Act, which provides comparison and examination of
handwriting by an expert for their verification and authenticity. It
is also submitted by Ld. Counsel for the petitioner that the
petition had no relation with the respondent and she did not
know, how the impugned cheque fell into his hands. Ld. Counsel
has further added that the petitioner had also expressed her
oblivion about the identity of the author of the signatures on the
impugned cheque during her cross-examination. Therefore, the
examination of an expert to verify the authenticity of the
signatures, is necessary for the petitioner to establish her defence.
4. On the other hand, Ld. Counsel for the respondent has submitted
that the complaint against the petitioner was filed in 2014. A
statutory notice u/s.251 Cr.P.C. was framed against her in 2017
and while explaining her defence at that time, she had admitted
her signatures on the impugned cheque. Thereafter, during
complainant's evidence, she never raised any specific dispute on
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Vs.
SUNIL SHARMA
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the signatures on impugned cheque. She was also given
opportunity to lead evidence, wherein she could have asked for
sending the signatures for examination by an expert, but no such
submission was ever made. After conclusion of trial, she
suddenly came up with the application for taking the photographs
of the impugned cheque with a new defence that she never put
the signatures on the cheque. The contention raised by Ld.
Counsel for the respondent is that the purpose of the application
was nothing but to delay the proceedings, which had already been
delayed for about 9 years.
5. Submissions heard. Record perused.
6. The Trial Court record would reveal that respondent had filed the
complaint u/s.138 N.I. Act in 2015. Summons were issued to the
petitioner, but she put her appearance only after issuance of
NBWs against her. At the time of framing of notice, she did not
deny her signatures on the impugned cheque, in fact, she
specifically admitted the signatures on it. Thereafter, when
incriminating evidence was put to her u/s.313 Cr.P.C., she did not
raise any specific dispute relating to her signatures. Even further,
opportunity was granted to the petitioner to lead defence
evidence, where she could have moved proper application for
examining the impugned cheque through handwriting expert, but
no such steps were taken by her at that stage also. The Trial Court
record would further reveal that the petitioner has made every
possible attempt to delay the proceedings. The application, which
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SUNIL SHARMA
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was dismissed by the Ld. Trial Court as well as this revision
petition also appear to be part and parcel of same process of
delaying the proceedings as long as possible.
7. Further, in order to interfere with an order in revision
proceedings, there has to be well founded error. It is not
appropriate for a revisional Court to revers an order, which upon
the face of it, reflects thoughtful consideration and appear to be in
accordance with law. Reference of observations made by the
Hon'ble Supreme Court of India in Amit Kapoor Vs. Ramesh
Chander & Ors. 2012 SC can be taken in this regard, wherein it
has been held that :
“8. ....we must advert to the discussion as to the ambit and scope of
the power which the courts including the High Court can exercise
under Section 397 and Section 482 of the Code. Section 397 of the
Code vests the court with the power to call for and examine the
records of an inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order made in a
case. The object of this provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-founded error and
it may not be appropriate for the court to scrutinize the orders, which
upon the face of it bears a token of careful consideration and appear
to be in accordance with law. If one looks into the various judgments
of this Court, it emerges that the revisional jurisdiction can be invoked
where the decisions under challenge are grossly erroneous, there is no
compliance with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial discretion is
exercised arbitrarily or perversely. These are not exhaustive classes,
but are merely indicative. Each case would have to be determined on
its own merits.
9. Another well-accepted norm is that the revisional jurisdiction of the
higher court is a very limited one and cannot be exercised in a routine
manner. One of the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to keep in mind that
the exercise of revisional jurisdiction itself should not lead to injustice
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SUNIL SHARMA
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ex facie. Where the Court is dealing with the question as to whether
the charge has been framed properly and in accordance with law in a
given case, it may be reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within the categories
aforestated”.
8. As has been noted above, the petitioner has made every possible
attempt to delay the proceedings in a case, which is technically
summary trial. This petition also appears to be part of the same
pursuit. Ld. Magistrate has committed no error by dismissing the
frivolous application via the impugned order.
9. The present revision petition, for the aforesaid reasons, is hereby
dismissed with cost of Rs.5000/- to be paid by the petitioner to
the respondent / complainant.
10. TCR, if any be sent back to the Ld Trial Court alongwith
copy of order.
11. Revision file be consigned to Record Room.
(BABRU BHAN)
ADDL.SESSIONS JUDGE-03,
NORTH WEST DISTT,
ROHINI COURTS
DELHI/04.05.2024
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