Delhi District Court
Ajay Maini vs M/S Dpa Finance Private Limited on 4 January, 2018
IN THE COURT OF JITENDRA KUMAR MISHRA,
SPECIAL JUDGE (NDPS), NORTH, ROHINI COURTS,
DELHI.
CR No. 184/2017
Arising out of
CC No. 254/1/16
U/s 138 N.I. Act
P.S. Model Town
In the matter of :
Ajay Maini,
S/o Mr. P. L. Maini,
R/o 404, INDUS Omaxe Reviera
Rudrapur Udham Singh Nagar,
UK26353. .....Appellant
Vs.
M/s DPA Finance Private Limited,
D13A/30, Model TownII,
New Delhi110009.
Through its Principal Officer/
Authorised Representative .....Respondent
Date of Assignment : 09.10.2017 Date of Arguments : 04.01.2018 Date of judgment : 04.01.2018 Crl. Appeal No.184/17 1 of 27
Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
O R D E R (ORAL):
1. This is a revision petition filed by the petitioner wherein the petitioner has challenged order dated 22.07.2017 (herein after referred as 'impugned order') whereby the ld. Trial Court has dismissed applications filed by the petitioner U/s 251 Cr.P.C. and U/s 210 Cr.P.C.
2. It is the case of the petitioner that the respondent/ complainant induced by the offer made to the petitioner whereby he explained him requirement of loan. They further represented that they would grant loan to the petitioner from their company with comparatively relaxed repayment schedules as compared to the market. The petitioner agreed to avail the credit facility from the respondent. It is further submitted in the petition that as per the understanding arrived at between the parties, the loan was repayable over a period of 5 years subject to reasonable rate of interest @ 5% p.a. and the same was repayable not by way of monthly EMI's but by way of the bulk payments to be made by the petitioner as per the convenience of the petitioner. It is further submitted in the petition that documents were executed and an account was opened at Union Bank of India, Model Town Branch, Delhi. It was represented that the bank manager would be sending his officer at the place of petitioner and would complete the process of verification and other Crl. Appeal No.184/17 2 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
formalities at the place of petitioner itself for opening the account. It is submitted that the petitioner had never gone to the bank for any account opening process and there was no transfer of the funds in the name of the petitioner as no account could have opened in his absence and without following the mandatory process.
3. Legal notice was received from the respondent in January, 2016 for recalling the entire loan amount. Another notice dated 15.04.2016 issued by an advocate of the respondent wherein the petitioner was called upon to pay a sum of Rs.5,58,00,000/ alongwith interest.
4. On 30th June, one summon was received from Rohini Court calling upon the petitioner to put in appearance in a criminal case for dishonour of cheque. Later on, it was discovered that someone had given introduction for petitioner's account opening which was never signed in presence of the petitioner. He was shocked to see that lots of other transactions were there in the account which were never done by the Petitioner.
5. The respondent had lodged a complaint with the police alongwith an application u/s 156(3) Cr.P.C. The respondent had also filed a malicious complaint with the police on the same set of facts and FIR No.111/17, u/s 406/420 IPC was registered at P.S. Model Town.
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6. Thereafter, the petitioner filed an application u/s 251 Cr.P.C seeking discharge while putting forth all the above facts.
7. An application u/s 210 Cr.P.C has also been filed by the petitioner before the ld. Trial Court.
8. Vide impugned order, the ld. Trial Court was pleased to dismiss applications u/s 251 Cr.P.C and u/s 210 Cr.P.C.
9. The present revision petition has been filed on the following grounds :
a) It is submitted that it is a mandatory provision of the law that when an investigation by the police is in progress in relation to the offence, which is the subject matter of trial being held by the Magistrate, the ld. Trial Court shall stay the proceeding of such inquiry;
b) The ld. Trial Court failed to appreciate the meaning of the expression 'Same Transaction' and to understand the word 'Offence' in reference to the facts of the present case;
c) The ld. Trial Court failed to appreciate that even if petitioner is alleged to have committed two different offences in the same transaction, even then he is liable to be tried by a single trial as enunciated in section 220 Cr.P.C.;
d) The ld. Trial Court did not appreciate the submissions made by the petitioner during disposal of referred applications;
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10. In support of his arguments, ld. Counsel for the petitioner Sh. D.M. Bhalla relied upon the following judgments :
i) State Vs. Har Narain 1976 Crl.L.J. 562 wherein in para 6, 7 & 8 as mentioned in the following the Head Notes:
"... ... As long as the facts under investigation by the police include the facts mentioned in the complainant case, the criteria laid down in subsection (1) of section 210 CrPC are satisfied and it will make no difference if the police come to the conclusion that offences not mentioned in the complaint have been committed by the accused. Once the criteria laid down in subsection (1) of section 210 CrPC are satisfied then if the magistrate takes cognizance of "any offence" against any person who is an accused in the complaint case on the basis of police report, it is his duty under subsection (2) of section 210 CrPC to try the two cases together as if they were instituted on a police report. ... ..."
ii) Joseph Vs. Joseph 1982 Crl.L.J.595 wherein Hon'ble High Court of Kerala has observed:
"The word "offence" occurring in S. 210(1) cannot be given restricted meaning. There it is used to denote the occurrence, the incident, or the event. This is clear from the words, which follows viz.
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'which is the subject matter of enquiry'. But the same meaning cannot be given to the word "offence" used in S. 210 (2). There, it is used in the restricted sense of violation of law. Cognizance can be taken only of a violation of law. For clubbing the two cases for trial it is enough that cognizance is taken by the Magistrate of any offence against any accused in the complaint case on the report of the police who investigated the occurrence which led to the complaint case and the offences taken cognizance of in the complaint case and in the case arising out of police report need not necessarily be identical. However, if it is insisted that all the offences taken cognizance of in the complaint case must be there in the case registered on the police report that will only defeat the very purpose of S.210 itself. It cannot be said that only in cases where the proceedings in the complaint case were stayed under subsec. (1) that clubbing of the two cases is possible. But it is only proper that the Magistrate stays the proceedings in the complaint case when he comes to know of the pending investigation ... ..."
iii) State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and another reported in 1963(2) Crl.L.J 671, wherein it has been observed in para 27 :
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"... ... The expression "same transaction" occurring in cls. (a), (c) (sic) and (d) of S.239 (of CRPC, 1898) as well as that occurring in S.235 (1) ought to be given the same meaning according to the normal rule of construction of statutes. ... ..."
The expression "SAME TRANSACTION"
has been discussed by the Full Bench of Hon'ble Supreme Court in The State of Andhra Pradesh V. Cheemalapati Ganeswara Rao reported in 1963 AIR 1850 : 1963(2) Crl.L.J 671. The Hon'ble Supreme Court while discussing the expression has observed :
25. ... ... What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression.
But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may Crl. Appeal No.184/17 7 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should coexist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction ... ...."
iv) Namathoti Sankaramma Vs. State of AP 2000 Crl.L.J. 4831 wherein Hon'ble Andhra Pradesh High Court in para 13, meaning of the word offence used in section 210 CrPC, explained as under :
"13. Subsection (1) of Section 210 of Cr.P.C. is designed to ensure that the enquiry or trial in the case instituted on the basis of a complaint and enquiry or trial on the basis of a police report in respect of the same incident do not proceed tangentially but proceed in tandem. To enable the Magistrate to monitor the enquiry or trial under these two different streams to ensure simultaneously such enquiry or trial, Sub section (1) of Section 210 of Cr.P.C.
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provides that when the case is instituted on the basis of a complaint, if it is brought to the notice of the Magistrate during the course of enquiry or trial on the basis of the said complaint that the investigation by the police in relation to the same offence is under way, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting investigation. The condition for applicability of Section 210(1) of Cr.P.C. is that there must be commonality of the 'offence' in the subject of investigation by the police and the subject of enquiry by the Magistrate in the complaint case. But considering the context and the object of the provision, the word 'offence' used in Subsection (1) of Section 210 of Cr.P.C. cannot be construed to refer to a particular provision of law defining certain offence. But it must be deemed to denote the incident or transaction in which an offence or offences have been committed."
v) Naresh Kakkar Vs. The State 1995 Crl.L.J. 3062 the Hon'ble High Court of Delhi has held :
"Trial for more than one offences in relation to same transaction - both the charges are liable to be clubbed together and accused directed to face single trial".
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vi) Surendra Singh Rautela Vs. State of Bihar 2002 Crl.L.J. 555:
"... subsection (1) of section 220 of the code lays down that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence, Subsection (3) of Section 220 of the Code lays down that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences."
vii) Raja Dayanand Vs. State Crl.M.C. No. 2295 of 2004 has held that :
"It is submitted that some of the in these two cases are common; therefore, it is in the interest of justice that the proceedings pending trial before ld. MM be tried by the same court and the case under the Arms Act be ordered to be committed by the court of additional Session Judge where the other case is pending. In the facts and circumstances of this case, case FIR under Section 27 of the Arms act is directed to be transferred and Crl. Appeal No.184/17 10 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
committed to the court where other matter under Section302/34 is pending trialBoth the cases are directed to be tried together in accordance with the law".
viii) Rajat Mittal Vs. State 94 (2001) DLT 162, the Hon'ble High Court of Delhi held :
"5. ......Section 210 of the Code of Criminal Procedure lays down the procedure to be followed when there is a complaint case and police investigating on the same facts. It provides that if a report is made by the investigating agency under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person, who is an accused in the complaint case, the Magistrate shall inquire into and try together the complaint case and the case arising out of the police report, as if both the cases were instituted on the police report. In most of the cases, material to sustain the charge, can be collected only through investigation and if, in the meantime, complainant has chosen to file a complaint under section 138 Negotiable Instrument Act, to save limitation or otherwise that cannot be the ground for quashing the FIR registered by the police. Looking into the nature of allegations here, it cannot be said that recording of FIR is an abuse of the process of law. The Crl. Appeal No.184/17 11 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
observations made by the Supreme Court in Sagar Suri's case (Supra) are not applicable to the facts of this case."
ix) Ambika Plastopack Pvt. & Anr. Vs. State and Anr. reported in 2014(206) DLT244, Hon'ble High Court of Delhi laid down principles relating to the proceedings under Section 138 of the Negotiable instruments Act. Out of the same under header of "Procedure prescribed under law" the Hon'ble Court directed as under :
"..... 4.3 Accused cannot appear before High Court ∙ without appearance and disclosure of defence before the Magistrate.
4.3.1 If the accused does not appear before the Court of Magistrate on summoning and rather approaches High Court, the High Court has to refuse to entertain him and ask him to appear before the Court of Magistrate as the High Court cannot usurp the powers of Magistrate and entertain a plea of accused why he should not be tried under Section 138.
4.3.2 The plea as to why he should not be tried under Section 138, is to be raised by the accused before the Court of Magistrate under Section 251 and under Section 263(g) of Cr.P.C. Along with his plea, he can file necessary documents and Crl. Appeal No.184/17 12 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
also make an application, if he is so advised, under Section 145(2) of N.I. Act to recall the complainant to cross examine him on his plea of defence. However, only after disclosing his plea of defence he can make an application that the case should not be tried summarily but as a summons trial case. This application must disclose the defence of the accused and the reasons why he wants the case to be tried as a summons trial."
x) Section 165 of the Indian Evidence is referred hereunder for ready reference:
"165. Judge's power to put questions or order production The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any question".
xi) Section 45 of the Evidence Act reads as under :
"Opinions of experts When the Crl. Appeal No.184/17 13 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts".
xii) State v. Pali Ram reported in AIR 1979 SC 14, the Hon'ble Supreme Court has observed :
"24. A sample writing taken by the Court under the second paragraph of Section 73, is, in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of Section 73, also. The first paragraph of the Section, as already seen, provides for comparison of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Crl. Appeal No.184/17 14 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
Court. The two paragraphs of the Section are not mutually exclusive. They are complementary to each other.
25. Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a Court holding an inquiry under the CrPC in respect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in the interests of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the Court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused's) admitted writing, and to reach its own conclusion with the assistance of the expert.
29. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding Crl. Appeal No.184/17 15 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
with regard to the identity of a handwriting which forms the sheetanchor of the prosecution case against a person accused of an offence solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.
32. Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the Court to use its own eyes and mind to compare, the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a Court seized of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, "is for the purpose of enabling the Court to compare" the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73. That is to say, the words 'for the purpose of enabling the Court to compare' do not exclude the use of such "admitted" or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as Crl. Appeal No.184/17 16 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the Court may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the two writings and arrive at a proper conclusion".
xiii) He also referred Section 311 Cr.P.C. which reads as under :
"Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."
xiv) Jamatraj Kewalji Govani Vs. State of Maharashtra reported in AIR 1968 SC 178, Hon'ble Supreme Court while considering the corresponding provision of the old Code of Criminal Procedure (Section 540) made the following observations Crl. Appeal No.184/17 17 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
in para 12 & 17 :
"12. There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states, Indeed as stated by Avory J. in Rex v. Dora Harris [1927] 2 K.B. 587 :
"The cases of Reg. v. Chapman (8 C & P.
558) and Reg. v. Holden (8 C & P.606) establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interest of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right.
17. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything Crl. Appeal No.184/17 18 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
suddenly or unexpectedly but whether court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of just decision, the action is open to criticism but if the courtesy's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the justification".
xv) Rahul Agrawal Vs. State of UP and Anr.
(Application No. 21148/2015) decided by Hon'ble High Court of Allahabad wherein the Hon'ble Court while relying upon a pronouncement of Hon'ble Supreme Court observed :
"3. The learned Magistrate seems to have lost sight that the proceedings under Section 138 N.I. Act are summary in nature. The basis of the complaint is the dishonour of cheques. Thus, if the applicant is denying the execution of the cheques at the first available opportunity, the Court does not find any legal impediment to allow the said application but to defer the same only after the evidence of the complainant is over would very much defeat the expeditious disposal of a case under Section 138 of N.I. Act. Coming to the issue at what stage such an application is maintainable, it would be Crl. Appeal No.184/17 19 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
opposite to quote the following observations of the Apex Court in the case of Kalyani Baskar Vs. M.S. Sampoornam (2007) 2 SCC 258:
"xxx xxx"
4. Thus what appears from the aforesaid discussion is that no doubt an application for expert examination of the alleged cheques is ordinarily filed at the stage of Section 243 (2) Cr.P.C, but where the applicant/accused is coming up with a request at a stage prior to it, this Court does not find any legal impediment to direct expert examination, on the contrary to defer the same to Section 243 (2) of the Code of Criminal Procedure stage, would defeat the expeditious disposal of a case u/s 138 N.I. Act. Moreover, the Court has not held that the application is vexatious or is lacking in bonafides."
11. This Court heard arguments of both the parties for more than 100 minutes. The parties have also been heard at the request of respective counsels.
12. Ld. Trial Court while meeting the arguments regarding Section 210 Cr.P.C. held that the accused has given a cheque to the complainant towards enforceable liability against him which is dishonoured by the bank and the accused failed to make payment within the prescribed time of serving of notice upon the accused Crl. Appeal No.184/17 20 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
whereas the ingredients of an offence U/s 406/420 IPC are quite different and for this reason it is held by the ld. Trial Court that Section 210 Cr.P.C. does not apply. Ld. Counsel for petitioner refers FIR No.111/17 and submits that the complaint case U/s 138 N.I. Act may be tried together with the case FIR No.111/17. In FIR, the case of the complainant is that the accused refuted to issue any cheque or executing any loan agreement with the complainant and he was shocked by the behaviour of the accused that the accused after inducing and obtaining a huge amount of loan from the complainant and further issuing a cheque of Rs.5,58,00,000/ in favour of the complainant, now dishonestly and willfully denying the entire transaction. The grievance of the complainant in the FIR is that the accused has dishonestly and willfully denied the entire transaction as well as issuing of any cheque and loan documents, thereby, playing fraud upon the complainant and cheated the petitioner whereas the case of the complainant in complaint case U/s 138 of N.I. Act is that the cheque issued by the petitioner was dishonoured due to 'Funds Insufficient'. Therefore, both the offences are different. Here is the case of the dishonour of cheque due to 'Funds Insufficient' whereas in FIR No.111/17, it is the case of the complainant that despite availing the facility of amount the respondent dishonestly and willfully denied the entire transaction Crl. Appeal No.184/17 21 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
and, thus, he felt cheated.
13. During further arguments, ld. Counsel for the petitioner further submits that it is his case that cheque has not been signed by the petitioner and for this reason he has also applied to refer the signature of the petitioner before FSL or before the handwriting expert so as to prove his such contention. Ld. Counsel for the respondent Sh. Rajiv Taneja refers S. Minz Vs. Madhu Bala Gupta, 2012 (2) JCC (NI) 183 wherein it is held :
"8. In the case of Manda Syamsundra Vs. Kurella Anjaneyachari & Others 2009 (1) DCR 726, the Andhra Pradsh High Court relied upon the case of HM Satish Vs. B.N. Ashok 2007 (3) Crimes 502 and L.C. Goyal (supra) and held thus; "In the light of the above decisions and in the light of the return of the cheque not on the ground of signature not tallying, no purpose will be served in sending the document to the handwriting expert and there are no grounds to interfere with the order of the lower Court.
9. This Court recently in the case of Kashi Ram Bansal (supra) also relied upon the decision of L.C. Goyal (supra) and held that in the case of denial of signaute by the drawer of a cheque, the best witness would be the concerned Bank Crl. Appeal No.184/17 22 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
Manager and not a handwriting expert".
14. He further refers Sangeetaben Mahendrabhai Patel Vs. State of Gujarat & Anr. (2012) 7 Supreme Court Cases 621 wherein the Hon'ble Supreme Court held :
"23. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial".
15. This Court is of the considered view that in this case it is the case where the cheque was dishonoured due to 'Funds Insufficient'. During arguments ld. Counsel for the petitioner submits that he also initiated proceedings against the concerned bank manager as the cheque was not signed by the petitioner but it was manipulated.
16. This Court is not going to the merits of the case but primafacie is of the view that it is the case of the petitioner himself in the present revision petition, which is supported by the affidavit also that the petitioner signed all documents before the respondent in a good faith. Now the question arises whether that good faith upon the respondent after availing the facility supplied by the Crl. Appeal No.184/17 23 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
respondent or without availing that facility, is a matter of trial. During arguments it is submitted on behalf of the respondent that the entire loan amount was given to the petitioner only through RTGS i.e. intrabank transfer of the amount. This transaction can only be done if the amount in actual has been transferred in the account of the petitioner. Ld. Counsel for the petitioner submits that the account in which the said amount was transferred was not within the knowledge of the petitioner at that time.
17. It is not a disputed fact that notice was issued and in those circumstances if notice was issued by the respondent and he came to know that such a huge amount was transferred in his name, then definitely an FIR should have been got registered by the petitioner himself.
18. Therefore, this Court is of the considered opinion that the allegations for the offence committed, as mentioned in FIR No.111/17, are entirely different as submitted in the complaint case U/s 138 N.I. Act.
19. During arguments ld. Counsel for the petitioner alternatively refers Section 220 Cr.P.C. and submits that both offences committed in Section 138 N.I. Act and committed in the case FIR No.111/17 are in the same series of transaction. Again this Court does not agree with the contentions of the ld. Counsel for the Crl. Appeal No.184/17 24 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
petitioner. Offence under Section 138 N.I. Act committed only when the cheque was dishonoured due to 'Funds Insufficient' and the offence committed in case FIR No.111/17 only when it was disputed that the amount was not received by him, as mentioned in FIR. Therefore, offence committed in both the cases are entirely different. This Court also refers illustration (l), to Section 220 Cr.P.C. :
"A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant of an offence under section 167 of the Indian Penal Code. A may be separately charged with and convicted of, offences under sections 471 (read with section 466) and 196 of that Code (45 of 1860)".
20. The facts of this case definitely can be put in the light of this illustration here. First time case was filed for the offence U/s 138 N.I. Act for the dishonour of cheque but later on, FIR has been registered against the petitioner when he denied the amount received, which is the subject matter of the complaint case U/s 138 N.I. Act. Till the filing of the complaint case U/s 138 N.I. Act no such offence was committed for lodging of FIR No.111/17. It is only after summons have been received and defence has been raised during 138 N.I. Act, then only the allegations for FIR No.111/17 Crl. Appeal No.184/17 25 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
were arisen. Therefore, this Court does not agree with the contention raised by the ld. Counsel for the petitioner regarding Section 220 Cr.P.C.
21. Ld. Counsel for the petitioner also submits that he raised a ground for discharge of the petitioner in the case. This is the settled law that at the time of raising the plea of discharge, the petitioner has to establish that from the contents of the complaint or the documents filed before the ld. MM, no offence is made out. Admittedly, cheque has been dishonoured for the reasons 'Funds Insufficient', has not been disputed before this Court; notice has been given U/s 138(b) of N.I. Act. Said notice was not replied till the filing of the complaint. Therefore, this court is of the considered view that no question of discharge is made out though the petitioner may have reasoned defence which definitely in accordance with the procedure established and following the principals of natural justice, is entitled to raise before the Court during trial. Therefore, the petitioner is not entitled for discharge in the case at this stage.
22. Therefore, the plea taken by the petitioner regarding Section 210 Cr.P.C. and Section 251 Cr.P.C. upon which the ld. Trial Court passed impugned order, does not sustain and the revision petition filed by the petitioner is dismissed in view of the Crl. Appeal No.184/17 26 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.
observations made herein above.
23. Regarding the plea taken by the petitioner U/s 311 Cr.P.C., since the said application is pending, therefore, the present revision petition cannot be decided for a pending application before the ld. Trial Court.
23. Here it is made clear that the observations made herein above are only for the disposal of the present revision petition and the same shall not affect the merits of the case as the merits of the case shall be adjudicated according to the evidence to be led before the ld. Trial Court.
24. Trial court record be sent back alongwith a copy of the order and revision file be consigned to Record Room.
Dictated & announced in (Jitendra Kumar Mishra) open court today on 04.01.2018 Special Judge (NDPS), North, Rohini Courts, Delhi.
Crl. Appeal No.184/17 27 of 27 Ajay Maini Vs. M/s DPA Finance Pvt. Ltd.