IN THE COURT OF MS [ENTITY] DISTRICT & SESSIONS JUDGE SOUTH EAST : SAKET COURT, NEW DELHI. Cr. REVISION NO. 439/2019 1. TEJAS ARVIND KUMAR BHAVNAGARI S/o Shri ARVIND KANTILAL BHAVNAGARI R/o 601, PARSHWA TOWER, NEAR JIVRAJ BRIDGE, NEAR SHYAMAL CROSS ROAD, 132 FEET RING ROAD, SATELLITE, AHMDABAD 380015 2. CHELISHA SAUMIL BHAVNAGARI S/o Shri SAUMIL ARVIND BHAI BHAVNAGARI R/o 601, PARSHWA TOWER, NEAR JIVRAJ BRIDGE, NEAR SHYAMAL CROSS ROAD, 132 FEET RING ROAD, SATELLITE, AHMDABAD 380015 3. DHWANIL SAUMIL BHAI BHAVNAGARI S/o Shri SAUMIL ARVIND BHAI BHAVNAGARI R/o 601, PARSHWA TOWER, NEAR JIVRAJ BRIDGE, NEAR SHYAMAL CROSS ROAD, 132 FEET RING ROAD, SATELLITE, AHMDABAD 380015 REVISIONISTS VERSUS M/s NIMIT BUILDERS PVT. LTD. HAVING ITS REGISTERED OFFICE AT 65/2, MASJID ROAD BHOGAL, [CASE NUMBER] Page 1 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] NEW DELHI110025. RESPONDENT Date of filing : 23.07.2019 First date before this court : 24.07.2019 Arguments concluded on : 29.08.2019 Date of Decision : 02.09.2019 APPEARANCE : Shri [ENTITY], learned counsel for revisionists Shri [ENTITY], learned counsel for respondent [ENTITY]
1. This is a revision under [SECTION] [ACT] read with [SECTION] [ACT] for setting aside the impugned order dated 10.07.2019 vide which the application for cancellation of NBW against the revisionists (who are accused No. 2, 4 and 5, in the petition under [SECTION] [ACT]) has been dismissed and process under [SECTION] [ACT] is directed to be issued.
2. Facts in brief are that the respondent had filed a complaint under [SECTION] [ACT] on account of dishonour of arrears of 27 cheques which had been given by the revisionists in a compromise before NCLT, New Delhi. Eight complaints incorporating three cheques in each case, have been filed against the revisionists. On 04.01.2019, an exemption application moved on behalf of all revisionists was allowed and the matter was fixed for [CASE NUMBER] Page 2 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] 22.01.2019, on which date, the bail bonds were furnished. The revisionists appeared on the next date i.e. 21.02.2019 and the matter was adjourned for 02.04.2019. On 02.04.2019, permanent exemption was granted to revisionists no. 2 and 3 under [SECTION] [ACT] subject to filing of affidavit containing undertaking as was specified. However, no time limit was mentioned for filing of the undertaking. The matter was adjourned for 13.05.2019, on which date, revisionist nos. 2 and 3 did not appear as they have been granted permanent exemption on the previous date. However, undertaking as was directed, could not be filed due to some communication gap between the revisionists and their previous counsel. However, learned MM took an adverse view for non filing of the undertaking and issued NBWs against revisionist nos. 2 and 3 and also against revisionist no. 1 despite the fact that he was ill and this fact had been informed by the learned counsel through an exemption application and had sought time to file medical documents, which were in transit through courier. The genuine request of revisionist no. 1 was not considered.
3. It is submitted that on coming to know about the requirement of filing the undertaking, on 04.07.2019, an affidavit of revisionist nos. 2 and 3 and medical record of revisionist no. 1 were submitted to the court. An application for cancellation of NBWs was [CASE NUMBER] Page 3 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] filed on 06.07.2019. The matter was taken up on 10.07.2019. The learned MM was of the opinion that the warrants cannot be cancelled unless the accused were present in person, even though as per the judgments of the Hon'ble Delhi High Court, the presence of accused persons is not a precondition for cancellation of NBWs.
4. It is further submitted that NBWs cannot be issued directly in a bailable offence when the presence is given through the counsel. The learned MM has failed to adhere to the guidelines as laid down by the Delhi High Court. Hence, the present revision challenging the impugned order dated 10.07.2019.
5. No formal reply has been filed on behalf of the respondent.
6. Learned counsel on behalf of the revisionists has argued that it is pertinent to mention that on 21.01.2019, the accused / revisionists did not appear as the date of hearing was fixed as 22.01.2019, as per the SMS received by the accused persons from the court. The matter was however, taken up on 21.01.2019. The revisionists appeared in the court on 22.01.2019 and took the bail. On 02.04.2019, since revisionists no. 2 and 3 had been granted permanent exemption but were not aware of the undertaking [CASE NUMBER] Page 4 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] required to be furnished. Though the same has been subsequently placed on record. Since there were no time frame reflected for furnishing the undertaking, the vacating of the order of permanent exemption and issuing NBW was arbitrary and shows non application of mind.
7. It has been further argued that on 13.05.2019, an application under [SECTION] [ACT] of the revisionists was allowed and they were given right to crossexamine the complainant. But no crossexamination could be done as the complainant was not present. However, in the impugned order dated 10.07.2019, the learned MM has observed that the opportunity to file application under [SECTION] [ACT] for crossexamination of the complainant stands closed. Once, the application had already been allowed, the observation that no application has been filed on 10.07.2019, clearly reflects non application of mind by the learned MM. The observations of learned MM that the revisionists are delaying the trial does not hold ground and the impugned order itself is full of discrepancy. The learned MM has committed grave error by insisting on presence of the revisionists for considering the application for cancellation of NBWs. It is therefore, submitted that the impugned order is liable to be set aside.
[CASE NUMBER] Page 5 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY]
8. Learned counsel has placed reliance on Inder Mohan Goswami & Ors. vs State of Uttaranchal & Ors.
MANU/SC/7999/2007 to argue that the present revision is maintainable.
9. Learned counsel for respondent has argued that the dismissal of application for cancellation of non bailable warrants is an interlocutory order and the present revision is liable to be dismissed as not maintainable.
10. I have heard the arguments and perused the record. My observations are as under :
11. Learned counsel has also placed reliance upon [PRECEDENT] which is a revision against the summoning order and not against issuance of NBWs.
12. In [PRECEDENT], a reference was made to Halsbury's Laws of England at page 742, where the law in regard to final / interlocutory order was defined as under :
"In general a Judgment or order which determines the [CASE NUMBER] Page 6 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY]
principal matter in question is termed "final".
An order which does not deal with the final rights of the parties, but either (1) is made before Judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after Judgment and merely directs how the declarations of right already given in the final Judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the man dispute."
13. In S. [ENTITY] Rao vs The King MANU/FE/0001/1947, [ENTITY] C.J. referred to English decision of Lord [ENTITY] in [PRECEDENT], wherein it was observed that "if their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules, it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."
14. In [PRECEDENT]'s case (supra), it was observed that there may be an order passed during the course of a proceeding which may not be final in the sense noticed in [ENTITY]'s case (Supra), but, yet it may not be an interlocutory orderpure or [CASE NUMBER] Page 7 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] simple. It was observed as under :
"There may be an order passed during the course of a proceeding which may not be final in the sense noticed in [ENTITY]'s case (Supra), but, yet it may not be an interlocutory orderpure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in [SECTION] is not meant to be attracted to such kinds of intermediate orders.
They may not be final orders for the purposes of [SECTION] of the [ACT], yet it would not be correct to characterise them as merely interlocutory orders within the meaning of [SECTION]."
15. In [PRECEDENT], NBWs were issued to the witnesses. In the said case, it was explained that the witnesses would not have any other opportunity to challenge the issue of NBWs and in so far as witnesses are concerned, the said order would be final. It was in those circumstances, the revision was allowed to be maintainable.
16. In [PRECEDENT], the cognizance was taken by the learned MM and bail was granted to the accused persons. Subsequently, on the same date, the complainant appeared and moved an application [CASE NUMBER] Page 8 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] on the basis of which order of bail was canceled behind the back of accused persons. It was in those unique conditions, it was observed that the order of the Magistrate was not justified and the same was set aside in the revision.
17. The facts in the present case are not covered by any of the judgments relied upon by the learned counsel for revisionists. This is a case where permanent exemption was granted to revisionists no. 2 and 3 which was subject to furnishing of an undertaking. Neither was the undertaking furnished on the subsequent date i.e. 10.07.2019 nor did the revisionists no. 2 and 3 appear. After hearing the learned counsel for the revisionists, their application for cancellation of NBWs directed to be issued on 13.05.2019, was dismissed and process under [SECTION] [ACT] was directed to be initiated.
18. The question which arises is in regard to the maintainability of the present revision which is against the NBW cancellation.
19. Noticeably, [SECTION] [ACT] confers on the High Court as well as Court of Sessions very wide powers to examine the legality, correctness and propriety of any order passed by any [CASE NUMBER] Page 9 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY]
"inferior criminal court". [SECTION] [ACT] operates as a check on the said vast revisional powers and the purpose of the said check is to curb delays in the decision of the criminal cases, in order to ensure fair and expeditious trial.
20. Basically, a judicial order passed by a criminal court can be either final order, intermediate order or interlocutory order. So far as final order is concerned, there can be no difficulty in the sense that an order of acquittal or conviction is a final order. The issue lies while distinguishing between an interlocutory order and an intermediate order, which distinction is necessary in view of the statutory bar created by [SECTION] [ACT], which curtails the revisional powers of the High Court and the Court of Sessions with respect to interlocutory orders.
21. In the case of [PRECEDENT], decided on 01.11.2017 Delhi High Court held that an order directing issuance of nonbailable warrants is an interlocutory order and therefore, criminal revision against that order is not maintainable in view of [SECTION] [ACT].
22. In order to determine as to whether the impugned order in the present case is interlocutory order (and thereby hit by [SECTION] Page 10 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] 397(2) [ACT]) or the same is intermediate order (and thereby amenable to the revisional jurisdiction of this court), the test is as to whether setting aside the impugned order would lead to termination of proceedings and if so, the impugned order cannot be held to be interlocutory order.
23. Undoubtedly, setting aside order dated 10.07.2019 whereby warrant cancellation application was dismissed, cannot culminate the proceedings. That being so, the impugned order is not intermediate order and the same is interlocutory order. Hence, the said impugned order is not amenable to revisional jurisdiction of this court.
24. Consequently, the revision petition is not maintainable, so the same is dismissed.
25. Before concluding, it may be mentioned that the application under [SECTION] [ACT] had already been filed and was allowed on 13.05.2019. The observations of the learned MM in the impugned order that the right to file application under [SECTION] [ACT] for crossexamination of complainant's witness is contrary to the previous ordersheet as the application already stand allowed to the limited extent. The learned MM may reconsider and [CASE NUMBER] Page 11 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY] permit crossexamination of the complainant's witness in terms of order dated 13.05.2019.
26. A copy of this judgment be sent to the learned trial court and revision file be consigned to record room.
Announced in the open court on this 2nd day of September 2019 ([ENTITY]) District & Sessions Judge South East, Saket Courts New Delhi [CASE NUMBER] Page 12 of 12 pages [ENTITY] & Ors. vs M/s [ENTITY]