Delhi High Court
Org Informatics Ltd. vs State & Anr. on 1 August, 2011
Equivalent citations: 2012 ACD 183 (DEL), (2012) 110 ALLINDCAS 432 (DEL), (2011) 4 DLT(CRL) 681, (2011) 184 DLT 381, 2012 (76) ACC (SOC) 35 (DEL)
Author: V.K. Shali
Bench: V.K. Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. C. No.2409/2011
Date of Decision : 01.08.2011
ORG INFORMATICS LTD. ..... Petitioner
Through: Mr. Sanjay Gupta, Adv.
Versus
STATE & ANR. ...... Respondents
Through: Mr. Yudhishtar Kahol, APP
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? NO
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES
V.K. SHALI, J. (oral)
1. This is a criminal misc. main petitions filed under Section
482 Cr.P.C. for setting aside the order dated 30.09.2010
and 12.01.2011 passed by the learned Metropolitan
Magistrate in complaint case no. 812/2010 and the order
dated 18.05.2011 passed by the learned Additional
Sessions Judge in criminal revision petition no. 34/2011.
Crl. M.C. No.953/2011 Page 1 of 10
2. It may be pertinent here to mention that criminal misc.
main cases bearing no. 2410 to 2422 are also between the
same parties challenging the said three orders except the
fact that they are passed in different complaint cases.
This case will be treated as a lead case giving the reasons
for the dismissal of the petition which would be equally
applicable to the other petitions.
3. The brief facts of the case are that the respondent no.
2/IBM India Pvt. Ltd. filed a complaint under Section 138
of the Negotiable Instrument Act against the present
petitioner, ORG Informatics Ltd. and its three Directors,
namely, Ajoy Khandheria, Rajesh Suri and Sushil Kumar
who are the petitioner nos. 2 to 4. The petitioner
no.1/company had allegedly issued cheque for a sum of
Rs.25,00,000/- to the respondent no. 2 which was
dishonoured on presentation. It was also alleged that the
petitioner nos. 2 to 4 were the directors of petitioner no.
1/company and were responsible for the conduct of the
business of the petitioner company, and therefore,
vicariously liable for the commission of the offence. The
Crl. M.C. No.953/2011 Page 2 of 10
respondent no. 2 complied with the statutory provisions of
the issuance of demand notice etc. The same is alleged to
have not been complied with by the petitioners,
accordingly, the aforesaid complaint was filed against the
present petitioners by the respondent no.2. Along with the
complaint an affidavit was filed by way of pre summoning
evidence and the learned Magistrate issued notice to the
present petitioners. On appearance, notice under Section
251 Cr.P.C was given to them through their counsel on
08.04.2010 and thereafter the matter was adjourned to
12.05.2010 for prosecution evidence.
4. On 12.05.2010 the Presiding Officer was on leave and the
matter was adjourned to 08.07.2010. On 08.07.2010, the
respondent no. 2 made a statement that the affidavit by
way of evidence filed by it at the pre summoning stage may
be treated as post summoning evidence also. The matter
was adjourned for mediation which did not yield any
result. Thereafter the matter was adjourned to 23.09.2010
for the purpose of cross examination of the respondent
nos.2's witnesses. On 30.09.2010, the case was
Crl. M.C. No.953/2011 Page 3 of 10
transferred to Ms. Surbhi Sharma Vats. The learned
Magistrate who noted that in view of the directions passed
by the High Court of Delhi in the judgment titled Rajesh
Agarwal Vs. State & Anr. 171 (2010) DLT 51, Crl. Misc.
No. 1996/2010, the matter shall be proceeded as summary
trial. Accordingly, the matter was adjourned to
12.01.2011 for the defence evidence.
5. On 12.01.2011, the learned Metropolitan Magistrate noted
that a perusal of the record show that the complainants
evidence has not yet been started and on account of an
inadvertent mistake the matter was adjourned for defence
evidence. It was observed that in terms of the judgment of
this Court in Rajesh Agarwal (Supra) read with section
143 of the Negotiable Instrument Act and Section 263(g)
Cr.P.C. the defence of the accused has to be recorded, and
accordingly, the matter was adjourned to 17.03.2011.
6. The petitioners feeling aggrieved by the orders dated
30.09.2010 and 12.01.2011 filed a revision petition before
the Sessions Court which was dismissed.
Crl. M.C. No.953/2011 Page 4 of 10
7. The contention of the learned counsel for the petitioners
before the revisionist court was two-fold, which was sought
to be raised before this Court also.
8. The first contention raised before the learned Additional
Sessions Judge was that even after having proceeded to
record the evidence of the respondent/complainant after
framing the notice shows the clear intention of the learned
Metropolitan Magistrate that he was to follow the
procedure prescribed for summon trial offence under
Section 251 to 259 Cr.P.C. and having done so the
Magistrate could not have reviewed his own order by
passing the impugned order dated 30.09.2010 and
12.01.2011 observing that the case shall be proceeded as
summary trial. It was contended by the learned counsel
for the petitioners that in terms of the judgment of the
Apex Court in Adalat Prasad Vs. Rooplal Jindal & Ors.
(2007) 7 SCC 338, the learned Magistrate could not have
reviewed his own order.
9. The second submission of the learned counsel for the
petitioners is that by the impugned order, the learned
Crl. M.C. No.953/2011 Page 5 of 10
Magistrate has directed the complainant to file his
statement of defence. It was contended that even though
it was assumed that the Magistrate has to follow the
summary trial procedure in terms of the Rajesh Agarwal
case (Supra), the same could not be followed
retrospectively as the learned Magistrate had already
proceeded to deal with the case by following the procedure
of a summons trial case. Both these pleas were negated
by the learned Additional Sessions Judge by a detailed
order and it was observed by him that no prejudice was to
be caused to the rights of the present petitioners by
following the directions given by the High Court of Delhi in
Rajesh Agarwal case (supra) and that the petitioners were
at liberty to file a case under Section 145(2) of the
Negotiable Instrument Act for seeking the recall of the
witnesses for the purpose of examination of their plea of
defence. The petitioners have preferred the present
petition by invoking Section 482 Cr.P.C. as they were still
not satisfied.
Crl. M.C. No.953/2011 Page 6 of 10
10. I have heard the learned counsel for the petitioners and
have also gone through the two judgments that were relied
upon by the petitioners in respect of his submissions
which were made by him before the Sessions Court. I
have also gone through the impugned orders.
11. At the outset, it may be pertinent here to mention that
although Section 482 Cr.P.C. starts with a non obstante
clause and reiterates powers of the High Court to pass any
order to prevent the abuse of process of law or to pass any
such order to secure the ends of justice, is not conditioned
or curtailed by any provision but still Court has the
discretion to see whether the invocation of Section 482
Cr.P.C. is justified or not. It means that even if a party
has preferred a revision petition under Section 397 Cr.P.C.,
he can still prefer a petition under Section 482 Cr.P.C. if
the ingredients for the application of Section 482 Cr.P.C.
are satisfied, namely, the fact that the situation is such
which would warrant the interference by the High Court
for the purpose of preventing the abuse of processes of law
or to secure the ends of justice. In the instant case, I do
Crl. M.C. No.953/2011 Page 7 of 10
not find that there is any possibility of interference by the
High Court as there is no abuse of processes of law nor
does any order require to be passed that is contrary to the
one which has been passed by the Sessions Court which
directed the petitioners to seek a recall of witnesses under
Section 145 (2) of the Negotiable Instrument Act for the
purpose of establishing his defence. It may also be
pertinent here to mention that Section 397 sub clause 3 of
Cr.P.C. prohibits a party from filing a second revision
petition. The present petitioners have already chosen to
file a petition before the Sessions Court and having done
so, they are prohibited from filing a second revision petition
even though it has been termed as a petition under section
482 Cr.P.C. Having said so, a perusal of the provisions
under Section 143 read with Section 145 of the Negotiable
Instrument Act would make it amply clear that the concern
of the legislature, while incorporating Section 143 and 145
by way of amendment w.ef. 06.02.2003, was essentially to
curtail the delay which was occurring in the disposal of
these complaints under Section 138 of the Negotiable
Crl. M.C. No.953/2011 Page 8 of 10
Instrument Act. The mandate of the law was that the case
should be tried summarily as far as possible and further,
the trial should be conducted on day to day basis and
preferably be disposed of within a period of six months. In
the instant case, the entire effort of the petitioners seems
to be to scuttle the trial and indulge in dilatory tactics.
The petitioners had already brought the matter before the
High Court earlier in the first round and when, it was
disposed of by Hon'ble Mr. Justice A. K. Pathak on
29.09.2010. In the present case also the learned
Additional Sessions Judge has specifically observed that no
prejudice is likely to be caused to the petitioners in the, the
trial proceeds according to summary procedure and the
only thing that is to be done by the present petitioner is to
file their statement of defence and then seek a recall of the
complainant/respondent witness for the purpose of cross-
examination as the complainant has already made a
statement that the evidence which has been filed by way of
affidavit at the stage of pre summoning may also be treated
as evidence at the stage of post summoning and therefore,
Crl. M.C. No.953/2011 Page 9 of 10
in my considered view the only purpose of filing the present
petition is to indulge in dilatory tactics, which cannot be
permitted by the Court. The plea that the learned Trial
Court has reviewed its own order or that the judgment title
Rajesh Agarwal case (Supra) has been applied
retrospectively have already been dealt with by the
Sessions Court. I feel that it need not be gone into afresh
by this Court.
12. For the reasons mentioned above, I do not find any merit in
the petition and accordingly, all the present petitions are
accordingly dismissed.
13. Dasti.
V.K. SHALI, J.
August 01, 2011 KP Crl. M.C. No.953/2011 Page 10 of 10