Delhi High Court - Orders
Anil Aggarwal vs Sirish Poddar on 12 May, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2181/2022 & CRL.M.A. 9244/2022 & CRL.M.A.
9243/2022
ANIL AGGARWAL ..... Petitioner
Through: Mr. Arpit Batra and Mr. Abhilasha
Chahalia, Advocates
versus
SIRISH PODDAR ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 12.05.2022 CRL.M.A. 9245/2022 Exemption allowed subject to just exceptions.
The application stands disposed of.
CRL.M.C. 2181/20221. The instant petition under section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner seeking quashing of summoning order dated 8th March, 2022 and criminal complaint instituted under Section 138 of the Negotiable Act, 1881 pending before the learned Metropolitan Magistrate (NI Act) Digital Court-01, South -East, New Delhi.
Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 1 of 9 Signing Date:20.05.2022 17:41:322. Brief facts of the case are that on 23rd January 2020, the petitioner approached the respondent, who happens to be the recognized Indian agent of M/s Dong Bang Enterprise Co. Ltd (hereinafter 'Principal Company') to purchase TFS Coils. The principal company supplied the goods to the petitioner and raised an invoice dated 21st February 2020 for an amount of Rs. 1,32,00,000/-. On 24th February 2020, petitioner further purchased goods and for the same another invoice dated 6th March 2020 for an amount Rs. 80,00,000/- was issued. Total amount payable comes out to Rs. 2,12,00,000/-. Despite fulfillment all the obligations, an irreconcilable impasse arose between petitioner and principal company. After series of meetings, partis entered into an 'Undertaking and Personal Guarantee against free DA import Docs' dated 22nd May 2020 and as per terms, petitioner was to issue 10 post-dated cheques in series bearing no. 440875- 440884 all dated 25th August 2020 for Rs. 21,10,000/- each, in favour of respondent.
3. Learned counsel for the petitioner submitted that the as per legal notice of the principal company dated 19th December 2020, all 10 post-dated cheques were presented for encashment since the petitioner failed to pay the amount by 25th August 2020 and all the cheques were dishonoured for the reason 'payment stopped by the drawer'. Thereafter the principal company instituted a criminal complaint under Section 138 of the NI Act.
4. It is submitted that the complaint filed by the principal company itself mentions that the petitioner herein had already paid an amount of Rs. 42,20,000/- qua cheque no. 440875 and 440876 dated 25th August 2020. It is further stated that even Rs. 3,19,783.08/- was paid by the petitioner qua cheque no. 440877 dated 25th August 2020 which is prior to issuing the Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 2 of 9 Signing Date:20.05.2022 17:41:32 statutory legal notice dated 19th December, 2020. Only 4 cheques in contrast of 10 cheques got dishonoured with remark 'payment stopped by drawer'.
5. It is submitted that in addition to admitted amount of Rs. 45,39,783.08/-, respondent concealed the fact that the petitioner has also made a payment of USD 19,338.22/- (Rs. 14,88,172.72/- approx) in relation to invoice dated 1st March 2020 bearing number SEA-2532B on 27thJanuary 2020 as an advance amount for booking the shipment.
6. It is submitted that the petitioner started receiving complaints that the goods are catching rust day by day. Therefore the petitioner got the same inspected from an outside agency. It is further submitted that on 13th April 2021, the principal company filed an application in CC No. 1612/2021 seeking permission to withdraw the above complaint with liberty to file fresh complaint.
7. It is submitted that the second statutory legal notice issued by the respondent to the petitioner was sent during the pendency of CC No. 1612/2021 and was done without re-presentation of the 4 cheques. The legal notice dated 24th March 2021 demanded Rs. 84,40,000/-, which even as per admitted case of Respondent is more than the cheque amount.
8. It is submitted that on 25th October 2021, respondent instituted the second complaint case bearing CC NI Act 8441/2021. Vide order dated 8 th March 2022 the learned MM, without effectively conducting the inquiry under section 202 of the Cr.P.C has summoned the petitioner.
9. It is vehemently submitted that the second complaint case bearing CC NI Act/8441/2021 has been instituted in contravention to the law laid down by the 3-judge bench of the Hon'ble Supreme Court in A.C.Narayanan Vs. State of Maharashtra &Anr2014 AIR SC 630, wherein it was categorically Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 3 of 9 Signing Date:20.05.2022 17:41:32 held that (i) the attorney holder cannot file the complaint on his own name but can initiate criminal proceedings on behalf of his principal, (ii) it is required by the Complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint.
10. In case of Pepsi Foods Pvt Ltd &Anr. v. Special Judicial Magistrate 1998 5 SCC 749, the Hon'ble Supreme Court has held that"The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.".
11. Learned counsel for the petitioners submitted that the impugned order dated 8th March 2022 passed by the learned ASJ is illegal and bad in law and hence, liable to be set aside.
12. Heard learned counsel for the petitioner and perused the record. This court has also perused the impugned Order dated 8th March, 2022, whereby summons were issued against the Petitioner.
13. For proper adjudication of the instant case, the relevant paragraphs of summoning order are reproduced herein below:
Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 4 of 9 Signing Date:20.05.2022 17:41:32"6. In view of the inquiry under Section 202 Cr.PC and upon scrutiny of the documents on record, prima facie, there appear sufficient grounds to proceed against the accused no.2 Anil Aggarwal. However, cognizance is declined qua accused no.1 M/s. Shree Sai Ram Traders which is a proprietorship firm as it is non-juristic entity. I take cognizance of the offence.
Accordingly, subject to the filing of an affidavit in compliance with the directions of Hon'ble Apex Court in Damodar S. Prabhu Vs. Sayed Babalal H [2010 (5) SCC 663], affirming that no other complaint has been filed elsewhere of the same dispute herein, issue summons to the accused no.2 for appearance through Video conferencing through the link available on the website/mentioned on summon on the filing of PF/RC within 7 days along with metadata form, through all permissible modes.
15. Service be also effected on the email, WhatsApp message(s), and text message of the Sh. Anil Aggarwal. Any previous correspondence between the parties on the same email, WhatsApp or phone number to be filed along with the tracking report. Further, the complainant is to file an affidavit to the effect that the email address and/or number on which the said message(s) are sent is/are of the accused persons along with certificate u/s 65-B of Indian Evidence Act and a digital copy of screenshot of such service be necessarily attached with a report on summons.
16. To expedite appearance, dasti summons are permitted. The process server is directed to serve the summons by way of affixation if premises are found closed or the same could not be served personally or on any adult male member. However, photographs of the affixed summons showing the address/place where it is affixed be filed as well along with the report..."Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 5 of 9 Signing Date:20.05.2022 17:41:32
14. It is settled position of law that while issuing summons to the accused the concerned Court has to be prima facie satisfied of the charges alleged against the accused. Hon'ble Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistrate (Supra), has observed as under: -
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
15. The Hon'ble Supreme Court in the case of Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430 has also highlighted the purpose of issuance of summons as under:
"7. ...No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 6 of 9 Signing Date:20.05.2022 17:41:32 Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant..."
16. Thus, the test for issuance of summons essentially involves determining whether the offense can be said to have been committed upon a perusal of the material on record. The satisfaction of the authority for issuing summons does not require a detailed scrutiny but a mere prima- facie satisfaction of the magistrate concerned.
17. Further, in the matter of Fiona Shrikhande v. State of Maharashtra, AIR 2014 SC 957, it was observed as laid down under:-
"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 7 of 9 Signing Date:20.05.2022 17:41:32 discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint."
18. It is settled law, that for summoning the accused persons to face trial for the offence punishable under Section 138 of the NegotiableInstruments Act, 1881, the complainant must satisfy certain ingredients aswere succinctly reiterated in case of Standard Chartered Bank Vs. State of Maharashtra &Ors., (2016) 6 SCC 62, the Hon'ble Supreme Court has held:
"9. On a studied scrutiny of the aforesaid provision, it is quite limpid that to constitute the criminal liability the complainant is required to show that a cheque was issued; that it was presented in the bank in question; that on due presentation, it was dishonoured; that, as enshrined in the provision, requisite notice was served on the person who was sought to be made liable for criminal liability; and that in spite of service of notice ,the person who has been arraigned as an accused did not comply with the notice by making payment or fulfilling other obligations within the prescribed period, that is, 15 days from the date of receipt of notice."
19. It can therefore, be reasonably inferred that while issuing summons, a prima facie appreciation of evidence coupled with application of judicial Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 8 of 9 Signing Date:20.05.2022 17:41:32 mind needs to be carried out for a summoning order to be just and legal. In the present matter, the learned Additional Chief Metropolitan Magistrate were to examine whether the very basic tenets and ingredients of provision of NI Act were being met by the Petitioner or not, while prima facie making out a case. In the instant case, the court below has passed a detailed and reasoned order after considering the entire material on record. The other issues/ submissions/ contentions raised by the petitioner are pure question of facts that cannot be dealt in this jurisdiction. All the contentions made before this Court may be raised before the Court below at appropriate stage.
20. In view of aforesaid facts and circumstances and having perused the provisions of law, this Court does not find any cogent reason to interfere with the impugned order dated 8th March 2022 passed by learned MM.
21. The petition is devoid of any merit and the same is accordingly dismissed. Pending application, if any, stands disposed of.
CHANDRA DHARI SINGH, J MAY 12, 2022 gs/ct Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 2181/2022 Page 9 of 9 Signing Date:20.05.2022 17:41:32