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2024 Supreme(Online)(DEL) 10327
* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 19.02.2024 Pronounced on: 06.03.2024 + CRL.M.C. 1794/2022 & CRL.M.A. 7632/2022 RAM KAWAR HUF ..... Petitioner Through:
In person.
versus M/S SMC GLOBAL SECURITIES LIMITED ..... Respondent Through:
Mr.Aman Usman, APP. Mr.Amar Nath Saini, Mr.Karan Gupta & Mr.Rohit Singh, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA
The power to summon documents should not be used for a roving or fishing inquiry and must be exercised sparingly. Documents sought must be relevant and necessary for a fair adjudication of the case.
Headnote:
Summoning of Documents - Negotiable Instruments Act - The court dismissed the petitioner's application seeking summoning of documents for cross-examination, holding that the documents sought were not relevant or necessary for the adjudication of the complaint under Section 138 of the NI Act. The court emphasized that the power to summon documents should not be used for a roving or fishing inquiry and that the petitioner's attempt was to delay the trial. The court also highlighted that the petitioner's intent was to conduct a fishing and roving inquiry and to embarrass the trial, and that such attempt cannot be allowed to succeed.
Fact of the Case:
The petitioner sought summoning of documents for cross-examination in a complaint case filed under Section 138 of the Negotiable Instruments Act. The trial court dismissed the application, and the petitioner challenged the order before the High Court.
Finding of the Court:
The court found that the documents sought by the petitioner were neither relevant nor necessary for a proper and fair adjudication of the complaint. The court emphasized that the power to summon documents should not be used for a roving or fishing inquiry and that the petitioner's attempt was to delay the trial. The court also highlighted that the petitioner's intent was to conduct a fishing and roving inquiry and to embarrass the trial, and that such attempt cannot be allowed to succeed.
Issues: The main issue was whether the documents sought by the petitioner for cross-examination were relevant and necessary for the adjudication of the complaint under Section 138 of the NI Act.
Ratio Decidendi: The court held that the power to summon documents should not be used for a roving or fishing inquiry and that the petitioner's attempt was to delay the trial. The court emphasized that the petitioner's intent was to conduct a fishing and roving inquiry and to embarrass the trial, and that such attempt cannot be allowed to succeed.
Final Decision: The court dismissed the petitioner's application seeking summoning of documents for cross-examination, holding that the documents sought were not relevant or necessary for the adjudication of the complaint under Section 138 of the NI Act.
JUDGEMENT
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, „Cr.P.C.‟), challenging the order dated 10.11.2021 passed by the learned Additional Sessions Judge, Central District, Tis Hazari Courts, Delhi (hereinafter referred to as the „ASJ‟) in Revision Petition, being Cr. Rev. No.701/2019, titled Ram Kawar HUF v. SMC Global Securities Ltd., whereby the learned ASJ has dismissed the Revision Petition filed by the petitioner herein against the Order dated 18.09.2019 passed by the learned Metropolitan Magistrate-02, Central District, Tis Hazari Courts, Delhi (hereinafter referred to as the „Trial Court‟) in Complaint Case, being CC No. 526862/2016, titled SMC Global Securities Ltd. v. Ram Kawar (HUF).
2. By the Order dated 18.09.2019, the learned Trial Court has dismissed the application filed by the petitioner, who is an accused in the Complaint Case filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short, „NI Act‟), seeking summoning of the records/documents/books of accounts mentioned in the said application for purposes of cross-examination of the Authorised Representative of the respondent/complainant company, CW-2 Mr.Laxman Kumar. Allegations in the Complaint:
3. The above Complaint Case has been filed by the respondent alleging that it is engaged in the business of providing trading facilities to its clients. It is a member of the National Stock Exchange of India Ltd. (NSE) and the Bombay Stock Exchange Ltd. (BSE) in Capital Market, Future and Options Segment and Currency Segment and is rendering broking services to its clients.
4. The respondent further alleges that the petitioner entered into an agreement to avail the trading facilities with the respondent company by signing Client Registration Form on 22.02.2011 in all segments of NSE and BSE, apart from two separate individual accounts in the name of the Karta of the petitioner and his wife.
5. It is alleged that after the execution of the said agreements and furnishing of the required documents, the petitioner had been allotted the Unique Client Code (UCC).
6. It is alleged that on 2nd week of September, 2011, there was a debit balance of more than Rs. 50,000/- in the account of the petitioner due to execution of trades conducted by it, and for the discharge of the said liability, the petitioner issued a cheque dated 12.09.2011 for the said amount, asking for it to be presented later as he was going through some financial constraints.
7. The respondent alleges that based on the above assurances, the respondent did not present the cheque for encashment and let the trading continue. It is alleged that as on 24.12.2011, there was a debit balance of more than Rs. 3.50 crores in the account of the petitioner. The petitioner, therefore, issued another cheque dated 24.12.2011 of Rs. 1 lakh as part payment, also stating that the balance amount of more than Rs. 1.50 lakhs shall be adjusted against his other account in his individual name and that of his wife.
8. The respondent alleges that as on 10.01.2012, there was a debit balance of Rs. 3,56,300.43/- (Rupees three lakh fifty six thousand three hundred and forty three paisa only) in the trading account of the petitioner. The abovementioned cheques were accordingly presented for encashment, however, were returned unpaid with the remark “insufficiency of funds”.
9. The cheques were represented for encashment on 13.01.2012, however, were again returned dishonoured with the remark “Funds insufficient”.
10. The respondent alleged that it thereafter served upon the petitioner a legal notice dated 03.02.2012, to which the petitioner responded vide replies dated 15.02.2012 and 06.03.2012. Earlier proceedings:-
11. The petitioner was summoned in the above complaint, vide Order dated 21.03.2012 passed by the learned Trial Court. The petitioner challenged the said Order before this Court by way of Crl.
