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HIGH COURT OF DELHI
TR.P.(CRL.)21/2013 Petitioner
RAJESHBERI Mr. AmanLekhi, SeniorAdvocate, with Mr. Vijay Kumar Gupta, Advocate
TR.P.(CRL.)21/2013 Petitioner
RAJESHBERI Mr. AmanLekhi, SeniorAdvocate, with Mr. Vijay Kumar Gupta, Advocate
VERSUS
Respondent Mr. GautamNarayan, Advocates HON^EMR.JUSTICESUNILGAUR
17.05.2013 MA. '"/S Cr.P.C^ Allowed subject to all just exceptions.
MA. Cr.P.CJ Forreasons statedinthe appUeation, itis allowed anddelay oftwo days'inre-filingtheaceompanyingapplicationiseondoned. criminal complaint (Anne.ure P-1) for the offence under section138ofTheNcotiaUeInstrumentsAc, I88I wasinstitutedmore than seven years ago. This enactment was ^ on of the disputes pertaimngtoJSS^^^&^
Tr.P.(Crl.) No.21/2013 Page 1 2013:DHC:8241 z legislature in its wisdom had stipulated that the proceedings under The
Negotiable Instruments Act, 1881 should be concluded within aperiod of six months by conducting a summary trial. The very purpose ofbringing this enactment seems to be defeated, as matters under this enactment are pending for years together. This is evident from the instant case, as the criminal complaint (Annexure P-1) for the offence under Section 138 of
The Negotiable Instruments Act, 1881 pertaining to dishonouring of cheque off6,75,000/- is stillpending.
Without going into the aspect as to whether the delay in disposal of the criminal complaint (Annexure-P-1) is attributable to petitioner ornot, what emerges is that at the stage of final arguments in the complaint
(Annexure P-1), petitioner had filed an application under Section 340 of the Cr.P.C. and according to learned counsel for respondent upon full- fledged hearing ofthe entire matter, the said application was disposed of in the first instance upon insistence ofpetitioner's counsel. However, as per learned senior counsel for petitioner, trial court had pronounced the order on petitioner's application under Section 340 Cr.P.C. and thereafter, had called upon petitioner's counsel to argue the main case on the same very day at about 5:00 p.m.. InfactJ the trial court was under the impression that lengthy arguments have already been addressed. It is so evident from the Comments (Annexure P-6) furnished by trial judge in the transfer petition before the learned Additional Chief Metropolitan
Magistrate. But petitioner's counsel before the trial court had sought time to argue the main case and the matter was adjourned to the next date of hearing.
During the course of hearing, it is pointed out by learned senior
Tr.P.(Crl.) No.21/2013 Page 2 r counsel for petitioner that from the Comments (Annexure P-6) submitted by the Trial Judge to the Additional Chief Metropolitan Magistrate, it is evident that the trial court is biased against petitioner and is pre determined to convict petitioner in this case. Attention of this Court was drawn to the following passage ofthe Comments (Anenxure P-6):-
"This Court has also grantedfull opportunity to the accused at every step of the case but the moment accused realized that an adverse
17.05.2013 MA. '"/S Cr.P.C^ Allowed subject to all just exceptions.
MA. Cr.P.CJ Forreasons statedinthe appUeation, itis allowed anddelay oftwo days'inre-filingtheaceompanyingapplicationiseondoned. criminal complaint (Anne.ure P-1) for the offence under section138ofTheNcotiaUeInstrumentsAc, I88I wasinstitutedmore than seven years ago. This enactment was ^ on of the disputes pertaimngtoJSS^^^&^
Tr.P.(Crl.) No.21/2013 Page 1 2013:DHC:8241 z legislature in its wisdom had stipulated that the proceedings under The
Negotiable Instruments Act, 1881 should be concluded within aperiod of six months by conducting a summary trial. The very purpose ofbringing this enactment seems to be defeated, as matters under this enactment are pending for years together. This is evident from the instant case, as the criminal complaint (Annexure P-1) for the offence under Section 138 of
The Negotiable Instruments Act, 1881 pertaining to dishonouring of cheque off6,75,000/- is stillpending.
Without going into the aspect as to whether the delay in disposal of the criminal complaint (Annexure-P-1) is attributable to petitioner ornot, what emerges is that at the stage of final arguments in the complaint
(Annexure P-1), petitioner had filed an application under Section 340 of the Cr.P.C. and according to learned counsel for respondent upon full- fledged hearing ofthe entire matter, the said application was disposed of in the first instance upon insistence ofpetitioner's counsel. However, as per learned senior counsel for petitioner, trial court had pronounced the order on petitioner's application under Section 340 Cr.P.C. and thereafter, had called upon petitioner's counsel to argue the main case on the same very day at about 5:00 p.m.. InfactJ the trial court was under the impression that lengthy arguments have already been addressed. It is so evident from the Comments (Annexure P-6) furnished by trial judge in the transfer petition before the learned Additional Chief Metropolitan
Magistrate. But petitioner's counsel before the trial court had sought time to argue the main case and the matter was adjourned to the next date of hearing.
During the course of hearing, it is pointed out by learned senior
Tr.P.(Crl.) No.21/2013 Page 2 r counsel for petitioner that from the Comments (Annexure P-6) submitted by the Trial Judge to the Additional Chief Metropolitan Magistrate, it is evident that the trial court is biased against petitioner and is pre determined to convict petitioner in this case. Attention of this Court was drawn to the following passage ofthe Comments (Anenxure P-6):-
"This Court has also grantedfull opportunity to the accused at every step of the case but the moment accused realized that an adverse
ORDER
may bepassed against him, he has preferred the present application in order to sullify the solemn proceeding and sanctity ofthejudicialproceedings."
• Petitionerhad filed an application for transfer of this complaintcase to another court before, learned District and Sessions Judge, at District
Courts Saket, New Delhi which was declined vide order of9"^ April, 2013 by observing as under;-
"There is nothing on record to indicate that the Ld. Magistrate has pre-judged the issues which need to be addressedfor final adjudication upon the criminal complaint which is now ripe for judgment afterfinal arguments are addressed on both sides. The learnedMagistrate has not shown any undue hurry in concluding the proceedings. On the contrary, he has been more than necessarily indulgent in granting adjournments. It may be that after having heard argumentsfor more than a couple ofhours on
17.12.2012, the Ld. Magistrate gathered an impression that even thefinal submissions had been covered by the applicant. But then, given the request made for further opportunity, he granted the same by adjourning it to the next datefor such purposes. It's not
Tr.P.(Crl.) No.21/2013 Page 3 .1 fair to readpartisan state ofmind ofthe Magistrate into the order only because the matter was adjourned to the very next date. The arguments have been substantially advanced, the Magistrate was correct in his approach by taking up the case on day to day basis".
To assail the aforesaid finding in the impugned order, learned senior counsel for petitioner had drawn the attention of this Court to the trial court order of 6^^ May, 2013 (Annexure-3) to point out that on the said date, the trial court had refused to adjourn the matter to a short date, even though senior counsel for petitioner was not available and had obse^rved that the orders would be pronounced on 21®^ May, 2013 but when the copy of order of 6"" May, 2013 was obtained, it was revealed that the matter is now listed before the trial court on 21®' May, 2013 for final arguments. An interpolation in the order of6^ May, 2013 is alleged, as learned counsel for respondent present in the Court conceded that infact on 6"^ May, 2013, the matter was reserved for orders to be pronounced on 21®' May, 2013 with liberty to the petitioner/accused to file written submissions.
At this stage, learned counsel for respondent asserted that petitioner/accuse,d has been successful in delaying the proceedings arising out of the complaint in question for more than seven years and infact, application under Section 340 of the Cr.P.C. was deliberately and belatedly filed with the sole motive to obstruct conclusion of the proceedings and insistence by petitioner's counsel for separate decision on this application was also for this reason.
After having heard both the sides and on scrutiny of the impugned
Tr.P.(CrI.) No.21/2013 Page 4 order, this Court is ofthe considered view that it is the prerogative ofthe trial court to decide application under Section 340 of the Cr.P.C. after hearing arguments in the main case as well and normally it is done so.
Even if a party insists that application under Section 340 Cr.P.C. be decided first, trial court is not obliged to do so, as it is common knowledge that in proceedings under Section 138 of The Negotiable
Instruments Act, 1881, every ploy is used by accused to delay the proceedings.
The Apex Court in Jahid Shaikh Vs. State ofGujrat (2011) 7 SCC
762 has reiterated that in order to ensure free and fair trial, the atmosphere in which the case is tried should be conducive to the holding of a fair trial. The Apex Court had further observed that the golden thread which runs through all the decisions cited on behalfofthe parties, is thatjustice must not only be done, but must also be seen to be done.
In view of afore-noted dictum of the Apex Court in Jahid Shaikh
(Supra), learned counsel for respondent fairly submits that there is no objection ifthis matter is heard by the predecessor trial judge, who had already heard this matter for few months.
In the light of above-said stand taken by respondent's counsel, without commenting upon the impartiality ofthe learned trial judge and legality ofthe impugned order, this case is transferred to the predecessor trial judge- Mr. Anuj Aggarwal, whose name has been disclosed at the hearing, and a time bound direction for early decision ofthe complaint casein question is also issued.
Accordingly, this petition is disposed of with direction to the parties to appear in CC No. 819/1/10, Genesis Educational Foundation
Tr.P.(CrL) No.21/2013 Page 5
Vs. Rajesh Beri, before Shri Anuj Aggarwal, Metropolitan Magistrate, in
District Courts Saket, New Delhi on 21^' May, 2013, who shall give solitary effective opportunity of hearing to petitioner to enable his counsel to address the arguments within a period of ten days from the date fixed i.e. from 21®^ May, 2013, with liberty to both sides to place on record their short written synopsis (not more than 10-12 pages). It is expected that the decision in the criminal complaint in question would be rendered by the trial court within amonth ofconclusion ofhearing in the complaint case.
With aforesaid directions, this petition and the application is disposed of
Shri Anuj Aggarwal, Metropolitan Magistrate, in District Courts
Saket, New Delhi beapprised ofthis order forthwith.
Copy of this order be given dasti under the signatures of Court
Master to counsel representing the bothsides.
(SUNIL GAUR)
JUDGE
MAY 17, 2013 r Tr.P.(CrLJ No.21/2013 ^
• Petitionerhad filed an application for transfer of this complaintcase to another court before, learned District and Sessions Judge, at District
Courts Saket, New Delhi which was declined vide order of9"^ April, 2013 by observing as under;-
"There is nothing on record to indicate that the Ld. Magistrate has pre-judged the issues which need to be addressedfor final adjudication upon the criminal complaint which is now ripe for judgment afterfinal arguments are addressed on both sides. The learnedMagistrate has not shown any undue hurry in concluding the proceedings. On the contrary, he has been more than necessarily indulgent in granting adjournments. It may be that after having heard argumentsfor more than a couple ofhours on
17.12.2012, the Ld. Magistrate gathered an impression that even thefinal submissions had been covered by the applicant. But then, given the request made for further opportunity, he granted the same by adjourning it to the next datefor such purposes. It's not
Tr.P.(Crl.) No.21/2013 Page 3 .1 fair to readpartisan state ofmind ofthe Magistrate into the order only because the matter was adjourned to the very next date. The arguments have been substantially advanced, the Magistrate was correct in his approach by taking up the case on day to day basis".
To assail the aforesaid finding in the impugned order, learned senior counsel for petitioner had drawn the attention of this Court to the trial court order of 6^^ May, 2013 (Annexure-3) to point out that on the said date, the trial court had refused to adjourn the matter to a short date, even though senior counsel for petitioner was not available and had obse^rved that the orders would be pronounced on 21®^ May, 2013 but when the copy of order of 6"" May, 2013 was obtained, it was revealed that the matter is now listed before the trial court on 21®' May, 2013 for final arguments. An interpolation in the order of6^ May, 2013 is alleged, as learned counsel for respondent present in the Court conceded that infact on 6"^ May, 2013, the matter was reserved for orders to be pronounced on 21®' May, 2013 with liberty to the petitioner/accused to file written submissions.
At this stage, learned counsel for respondent asserted that petitioner/accuse,d has been successful in delaying the proceedings arising out of the complaint in question for more than seven years and infact, application under Section 340 of the Cr.P.C. was deliberately and belatedly filed with the sole motive to obstruct conclusion of the proceedings and insistence by petitioner's counsel for separate decision on this application was also for this reason.
After having heard both the sides and on scrutiny of the impugned
Tr.P.(CrI.) No.21/2013 Page 4 order, this Court is ofthe considered view that it is the prerogative ofthe trial court to decide application under Section 340 of the Cr.P.C. after hearing arguments in the main case as well and normally it is done so.
Even if a party insists that application under Section 340 Cr.P.C. be decided first, trial court is not obliged to do so, as it is common knowledge that in proceedings under Section 138 of The Negotiable
Instruments Act, 1881, every ploy is used by accused to delay the proceedings.
The Apex Court in Jahid Shaikh Vs. State ofGujrat (2011) 7 SCC
762 has reiterated that in order to ensure free and fair trial, the atmosphere in which the case is tried should be conducive to the holding of a fair trial. The Apex Court had further observed that the golden thread which runs through all the decisions cited on behalfofthe parties, is thatjustice must not only be done, but must also be seen to be done.
In view of afore-noted dictum of the Apex Court in Jahid Shaikh
(Supra), learned counsel for respondent fairly submits that there is no objection ifthis matter is heard by the predecessor trial judge, who had already heard this matter for few months.
In the light of above-said stand taken by respondent's counsel, without commenting upon the impartiality ofthe learned trial judge and legality ofthe impugned order, this case is transferred to the predecessor trial judge- Mr. Anuj Aggarwal, whose name has been disclosed at the hearing, and a time bound direction for early decision ofthe complaint casein question is also issued.
Accordingly, this petition is disposed of with direction to the parties to appear in CC No. 819/1/10, Genesis Educational Foundation
Tr.P.(CrL) No.21/2013 Page 5
Vs. Rajesh Beri, before Shri Anuj Aggarwal, Metropolitan Magistrate, in
District Courts Saket, New Delhi on 21^' May, 2013, who shall give solitary effective opportunity of hearing to petitioner to enable his counsel to address the arguments within a period of ten days from the date fixed i.e. from 21®^ May, 2013, with liberty to both sides to place on record their short written synopsis (not more than 10-12 pages). It is expected that the decision in the criminal complaint in question would be rendered by the trial court within amonth ofconclusion ofhearing in the complaint case.
With aforesaid directions, this petition and the application is disposed of
Shri Anuj Aggarwal, Metropolitan Magistrate, in District Courts
Saket, New Delhi beapprised ofthis order forthwith.
Copy of this order be given dasti under the signatures of Court
Master to counsel representing the bothsides.
(SUNIL GAUR)
JUDGE
MAY 17, 2013 r Tr.P.(CrLJ No.21/2013 ^