Rajesh Beri v. Genesis Education Foundation

ORDER

17.05.2013 MA. '"/S Cr.P.C^ Allowedsubjectto alljustexceptions. MA. Cr.P.CJ Forreasonsstatedinthe appUeation,it is allowedanddelayoftwo days'inre-filingtheaceompanyingapplicationis eondoned. criminal complaint (Anne.ure P-1) for the offence under section138 ofTheNcotiaUeInstrumentsAc, I88I was institutedmore than seven years ago. This enactment was ^ on of the disputes pertaimngtoJSS^^^&^ Page 1 z legislaturein its wisdom had stipulatedthat the proceedingsunder The NegotiableInstrumentsAct, 1881 shouldbe concludedwithinaperiodof six months by conductinga summarytrial. The very purposeofbringing this enactment seems to be defeated, as matters under this enactment are pendingfor years together.This is evidentfrom the instant case, as the criminalcomplaint(AnnexureP-1) for the offenceunder Section 138 of The Negotiable InstrumentsAct, 1881 pertaining to dishonouring of chequeoff6,75,000/-is stillpending. Withoutgoinginto the aspectas to whetherthe delay in disposalof the criminalcomplaint(Annexure-P-1)is attributableto petitionerornot, what emerges is that at the stage of final arguments in the complaint (AnnexureP-1), petitionerhad filed an applicationunder Section340 of the Cr.P.C. and accordingto learned counsel for respondentupon full-fledgedhearingofthe entirematter,the said applicationwas disposedof in the first instanceupon insistenceof petitioner'scounsel. However, as per learnedsenior counsel for petitioner,trial court had pronouncedthe orderon petitioner'sapplicationunder Section340 Cr.P.C.and thereafter, had calledupon petitioner'scounselto argue the main case on the same very day at about 5:00 p.m.. InfactJ the trial court was under the impressionthat lengthyargumentshave alreadybeen addressed.It is so evident from the Comments (AnnexureP-6) furnished by trial judge in the transfer petition before the learned Additional Chief Metropolitan Magistrate.But petitioner'scounselbeforethe trial courthad soughttime to argue the main case and the matterwas adjournedto the next date of hearing. During the course of hearing, it is pointed out by learned senior Page2 r counsel for petitioner that from the Comments (AnnexureP-6) submitted by the Trial Judge to the AdditionalChief MetropolitanMagistrate,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 of the Comments (Anenxure P-6):- "This Court has also granted full opportunity to the accused at every step of the case but the moment accused realized that an adverse judgment may bepassed against him, he has preferred the present application in order to sullifythe solemnproceeding and sanctity ofthejudicial proceedings." *• Petitionerhad filed an applicationfor transfer of this complaintcase to another court before, learned District and Sessions Judge, at District CourtsSaket,New Delhiwhichwas declinedvide orderof9"^ 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 complaintwhich is now ripe for judgment afterfinal argumentsare addressed on both sides. The learnedMagistratehas 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 of hours on

17.12.2012, the Ld. Magistrate gathered an impression that even thefinal submissionshad 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 Page 3 .1 fair to read partisan state of mind of the 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 wouldbe pronouncedon 21®^ May, 2013 but when the copy of order of 6"" May, 2013 was obtained,it was revealed that the matter is now listedbeforethe trial court on 21®' May, 2013 for final arguments.An interpolationin the orderof6^ 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 pronouncedon 21®' May, 2013 with liberty to the petitioner/accusedto file written submissions. At this stage, learned counsel for respondent asserted that petitioner/accuse,dhas been successfulin delayingthe 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 Courtis ofthe consideredview that it is the prerogativeofthe trial court to decide applicationunder Section 340 of the Cr.P.C. after hearingarguments in the main case as well and normallyit is done so. Even if a party insists that applicationunder 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 InstrumentsAct, 1881, every ploy is used by accused to delay the proceedings. The Apex Courtin JahidShaikh Vs. StateofGujrat(2011)7 SCC 762 has reiterated that in order to ensure free and fair trial, the atmospherein which the case is triedshouldbe conduciveto the holding of a fair trial. The Apex Court had further observed that the golden threadwhichruns throughall the decisionscitedon behalfoftheparties, is thatjusticemustnotonly be done, butmustalso be seen to be done. In view of afore-noteddictum of the Apex Court in Jahid Shaikh (Supra), learned counsel for respondentfairly submits that there is no objectionifthis matter is heard by the predecessortrialjudge, who had alreadyheardthis matterfor few months. In the light of above-saidstand taken by respondent'scounsel, withoutcommentingupon the impartialityofthe learnedtrialjudge and legalityofthe impugnedorder, this case is transferredto the predecessor trial judge-Mr. Anuj Aggarwal,whose name has been disclosedat the hearing, and a time bound directionfor early decisionofthe complaint casein questionis also issued. Accordingly, this petition is disposed of with direction to the parties to appear in CC No. 819/1/10, GenesisEducationalFoundation Tr.P.(CrL)No.21/2013 Page5 Vs. RajeshBeri, beforeShri Anuj Aggarwal,MetropolitanMagistrate,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 argumentswithin a period of ten days from the date fixed i.e. from 21®^ May, 2013, with libertyto both sides to place on record their short written synopsis (not more than 10-12 pages). It is expectedthatthe decisionin the criminalcomplaintin questionwouldbe renderedby the trialcourtwithinamonthofconclusionofhearingin the complaint case. With aforesaid directions, this petition and the application is disposed of Shri Anuj Aggarwal, MetropolitanMagistrate,in District Courts Saket,New Delhibeapprisedofthis orderforthwith. Copy of this order be given dasti under the signaturesof Court Masterto counselrepresentingthe bothsides. (SUNIL GAUR) JUDGE MAY 17, 2013 r Tr.P.(CrLJNo.21/2013 ^

r" IN THE HIGH COURT OF DELHI AT NEW DELHI + TR.P.(CRL.)21/2013 Petitioner RAJESHBERI Mr. AmanLekhi,SeniorAdvocate, withMr. VijayKumarGupta, Advocate versus Respondent Mr. GautamNarayan,Advocates HON^EMR.JUSTICESUNILGAUR