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Vipin Kumar Versus State of Delhi & ARK fluid system components Pvt. Ltd.

2017 (11) TMI 485 - DELHI HIGH COURT

Additional documents after passing the summoning order - Held that:- In the instant case the additional documents pertains to a reply filed by the respondent No.2/complainant in the revision petition along with other documents, reply and documents filed before this Court, the copy of annual balance sheets of the accused company for the year 2010-11, 2011-12 and 2012-13 which were filed by the accused persons on 29.11.2014 and 29.12.2014, and the certificate issued by the Company Secretary in com .....

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efore, it is for the petitioner to explain its creation in accordance with the law. - CRL.M.C. 5084/2015 and Crl.M.A.No.18321/2015 - Dated:- 3-11-2017 - MR. I.S. MEHTA J. Petitioner Through: Mr. Shiv Chopra and Mr. Mayank Mishra, Advocates. Respondents Through: Mr. Raghuvinder Varma, APP for State. Mr. Manoj Ohri, Sr. Advocate with Mr. Rahul Sharma, Advocate for R-2. JUDGMENT I.S. MEHTA, J. 1. Instant petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India has been .....

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before the Court of Learned ACMM, Saket, New Delhi under Sections 138/141 of the Negotiable Instruments Act, 1881 against the accused persons, i.e. (1) DD Global Capital Ltd., (2) Sanjay Gambhir, (3) Narender Kumar, (4) Tarun Kumar and (5) Vipin Kumar (petitioner hrein). The said DD Global Capital Ltd. is a family holding company which was previously known as DD Township Ltd. and the petitioner is the Additional Director of DD Global Capital Limited w.e.f. 01.02.2011. 3. It is alleged in the com .....

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the DD Global Capital Ltd.-accused No.1. The said amount so paid as a friendly loan was agreed and promised to be refundable after one year however, the said amounts have not been repaid. 4. It is further alleged in the complaint that the accused No.5/petitioner herein looks after the day to day working of the accused No.1/company relating to its legal affair, finances, sale of property and other aspects of it. Further, on repeated requests and demands the accused No.1-DD Township Ltd. issued fo .....

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resented for encashment by the respondent No.2/complainant through its banker, i.e. Corporation Bank, GK-II, New Delhi, all the said four cheques were dishonoured vide return memo dated 09.11.2011 with remarks "stop payment". On this the respondent No.2/complainant issued legal demand notice dated 02.12.2011 to the accused persons and when the accused persons failed to repay/refund the respondent No.2/complainant, on 24.01.2012 the respondent No.2/complainant filed a complaint under Se .....

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r passed by the learned Sessions Court before this Court in Crl. M.C. 5507/2014 and this Court held that the petitioner can raise all the issues before the Trial court at the stage of framing of notice. 8. It is pertinent to mention here that the respondent No.2/complainant on 05.03.2015 moved an application for placing additional documents on record as those documents were not filed initially in the complaint as they were not available with the complainant at the time of filing of the complaint .....

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ed that the petitioner is the accused/respondent before the court below and the court below on filing of the complaint by the respondent No.2/complainant under Section 200 Cr.P.C. for offences under Section 138 read with 141 N.I. Act, summoned the present petitioner vide order dated 24.01.2012. It is further submitted that during the course of the trial, the petitioner moved an application for discharge from the complaint case as there was no evidence qua the present petitioner in the said compl .....

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has been allowed by the court below which is contrary to the law and procedure. Reliance is placed upon the judgment in the following cases:- i. Yahoo! India Pvt. Ltd. vs. State & Anr; 2012 (130) DRJ 656. ii. Subodh S. Salaskar vs. Jayprakash M. Shah and Another; (2008) 13 SCC 689. iii. S.R. Sukumar vs. S. Sunaad Raghuram; (2015) 9 SSC 609. iv. Sanjay Gambhir vs. State and Anr. Crl.M.C.No.376/2016 decided on 11.05.2017. 11. The learned counsel for the petitioner further submits that the pra .....

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stage of Section 251 Cr.P.C. after disclosing his evidence. Reliance is placed on the jdecision in the case Vindyawashini Prasad @ Vidhyawashini Prasad Verma vs. Shashi Kant Verma and Another; 2001 (3) BLJR 2313. 12. He further submits that there is no stage of taking of the additional documents after passing the summoning order and closing of the procedure under Section 251 Cr.P.C. and the second stage comes only after Section 251 Cr.P.C. and not before that. In the instant case, after disclos .....

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mits that the petitioner has certain rights under the procedure and to take his defence but this right has to be protected by the Court if the same is not protected by the Court then the accused/petitioner will be prejudiced and the respondent No.2/complainant will keep on filing documents and a day will come when whole character of the respondent No.2/complainant will start give different versions. 13. Mr. Manoj Ohri, learned senior counsel appearing on behalf of the respondent No.2/complainant .....

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or the respondent No.2/complainant has further submitted that the accused/petitioner cannot run away on his own. Reliance is placed upon the following judgments:- i. Rajaram Prasad Yadav vs. State od Bihar; AIR 2013 SC 3081. ii. P. Chhaganlal Daga vs. M. Sanjay Shaw; (2003) 11 SCC 486. iii. Vijay Kumar vs. State of U.P.; (2011) 8 SCC 136. iv. Rajendra Prasad vs. Narcotic Cell; (1999) 6 SCC 2010. 15. In the instant case the additional documents pertains to a reply filed by the respondent No.2/com .....

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used company. 16. Since the documents in question are relevant documents for the purpose of determining whether the petitioner was the director who was dealing and responsible for the day to day affairs of the accused company and the documents so produced before the Lower Court would be the documents of the petitioner himself therefore, it is for the petitioner to explain its creation in accordance with the law. 17. The Apex Court in Natasha Singh vs. CBI (State); (2013) 5 SCC 741 has made the f .....

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llowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane t .....

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