Delhi District Court
Royal Bank Of Scotland vs . Dinesh Kaushal on 3 February, 2014
CR NO: 84/13
Royal Bank of Scotland Vs. Dinesh Kaushal
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE-01, DWARKA COURTS, NEW DELHI
CR NO: 84/13
The Royal Bank of Scotland NV.
Hansalaya-15
Barakhamba Road
New Delhi-110 001. ... Petitioner/Revisionist
Versus
Mr.Dinesh Kaushal
Director, Finance
Tulip Telecom Limited
C-160, Okhla Industrial Area
Phase-I, New Delhi-110020. ... Respondent
Date of institution of revision petition : 18.09.2013
Date on which order reserved : 21.01.2014
Date on which order pronounced : 03.02.2014
ORDER
1. The revisionist/petitioner is aggrieved by the order dated 31.07.2013 (hereinafter referred to as impugned summoning order) of the ld.trial court vide which respondent was not summoned as an accused u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act).
2. Notice of the revision petition was issued to respondent, who CR NO: 84/13 1/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal chose not to file any reply.
3. I have heard ld.counsel for revisionist/petitioner and ld.counsel for respondent. I have also summoned the trial court record and have carefully perused the same.
4. Counsel for revisionist/petitioner has submitted that despite there being allegations against respondent that he being the Director (Finance) in the accused company, was incharge of managing day to day affairs and despite there being allegation that the present respondent alongwith other accused persons had approached the revisionist/petitioner for availing an overdraft facility and thereafter, revisionist had sanctioned the said facility with the maximum limit of 10 crore, the ld.trial court has not summoned the respondent as an accused for the offence u/s 138 of the NI Act. In support of his contention, he has relied upon the judgment of the Hon'ble Supreme Court of India delivered in SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla and Ors., (2005) 8 SCC 89.
5. Accordingly, it was prayed that impugned order be set aside and respondent be summoned as an accused u/s 138 of the NI Act.
6. On the other hand, counsel for respondent has submitted that CR NO: 84/13 2/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal present revision petition is not maintainable. It was submitted that the impugned order amounts to discharge of respondent which has the effect of acquittal and against the order of acquittal, appeal lies only to the Hon'ble High Court u/s 378 of Cr.P.C.
7. In support of his submission, he has relied upon judgments:- (1) Veena S.Rajnalkar Vs. N.Bhargavi Devi and anr., Crl.Petition NO. 7801 of 2008 of Andhra High Court vide order dated 24.11.2011 ; (2) M/s.T.Azeerur Rahman & Co.Vs. M/s.Super Supplies, 2007(3) JCC (NI) 302 of High Court of Delhi; and (3) Harvinder Singh Vs. State of Punjab Crl.Revision No. 1275 of 2011 (O&M) of Punjab and Haryana High Court.
8. Secondly, it was submitted that there are no averments in the complaint as to how and in what manner, respondent being the Director was incharge of or was responsible to accused company for the conduct of its business. Therefore, the ld.trial court was right in not summoning respondent as an accused u/s 138 of the NI Act. In support of his submission, he has relied upon the judgment of the Hon'ble Supreme Court of India reported as National Small Industries Corporation Ltd. Vs. Harmeet Singh Paintal and anr., (2010) 3 SCC 330.
9. It was further submitted by counsel for respondent that even CR NO: 84/13 3/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal the Hon'ble High Court of Delhi in the judgment delivered in Crl.M.C. No. 1821/13, Sudeep Jain Vs. M/s.ECE Industries Ltd.,vide order dated 06.05.2013 has issued directions to Ld.Magistrates which had come into effect from 01.07.2013 where they have been directed to obtain copy of Form 32 and information as per the Annexure given in the said judgment to avoid wrong summoning of those Directors, who have no role to play in managing the affairs of the company and since in the present case, same were not complied, therefore, there was no material before the ld.trial court to have summoned the respondent as an accused.
10.Lastly, it was submitted that if this court is of the view that revision is maintainable, then also there is no ground put forth by revisionist which warrants exercise of discretion in favour of revisionist/complainant by this court. It was further submitted that revisional court can exercise discretion where interest of public requires correction of manifest illegality or for the prevention of gross miscarriage of justice. In support of his submission, he has relied upon judgment of Hon'ble Supreme Court of India delivered in Narender Pal Kaur Chawla Vs. S.Manjeet Singh Chawla and anr., 2012 (2) JCC 1166. Accordingly, it was prayed that revision petition be dismissed.
11.I have considered the rival submissions made by respective CR NO: 84/13 4/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal counsels and have carefully perused the trial court record.
12.I shall first deal with the contention of respondent with regard to maintainability of this revision petition before this court.
13.To appreciate the contention of respondent, I have carefully perused the judgments relied upon by the respondent delivered in Veena S.Rajnalkar's case (supra), M/s.T.Azeerur Rahman & Co.'s case (supra) and Harvinder Singh's case (supra) and this court is of the opinion that none of the aforementioned judgments are applicable to the facts of the present case.
14.In all the three judgments, criminal complaints were dismissed after accused had been summoned and, therefore, it was held that dismissal of complaint amounted to acquittal of accused and against the order of acquittal by Ld.Magistrate, an appeal lies to the High Court u/s 378 of Cr.P.C.
15.However, the facts of the present case are distinguishable from the aforementioned judgments as in the present case, criminal complaint has been dismissed u/s 203 Cr.P.C.prior to summoning of accused.
16.Dismissal of complaint prior to summoning of accused or post CR NO: 84/13 5/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal summoning of accused has different connotations. If a criminal complaint is dismissed after summoning of accused on the ground of compounding of offence, non-appearance of complainant or death of complainant or otherwise on merits, it has the effect of acquittal. Therefore, an appeal lies u/s 378 Cr.P.C.before the Hon'ble High Court. However, where complaint is dismissed u/s 203 Cr.P.C. i.e.prior to summoning of an accused, as in the present case, it does not result in acquittal as acquittal pre-supposes existence of allegations against accused of having committed some offence. Acquittal is with regard to some offence. Therefore, if there is no allegation against accused of having committed any offence, there can be no order of acquittal for a particular offence.
17.When Ld.Magistrate dismisses a complaint u/s 203 Cr.P.C. at the pre-summoning stage, he does not have sufficient material against accused to summon him for a particular offence. Therefore, dismissal of complaint u/s 203 Cr.P.C.at the pre- summoning stage, means that ld.Magistrate was satisfied that accused has not committed any offence. Therefore, dismissal of complaint u/s 203 Cr.P.C. does not result in acquittal because at this stage, ld.Magistrate did not find sufficient material to summon the person arrayed as an accused for some offence. Further, acquittal pre-supposes some offence alleged to have been committed by accused. When the person CR NO: 84/13 6/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal arrayed as an accused has not been summoned for any offence, question of his acquittal at the stage of 203 Cr.P.C.does not arise. Therefore, in the opinion of this court since, since dismissal of complaint u/s 203 Cr.P.C. does not amount to acquittal and is a final order, therefore, revision is maintainable before this court u/s 397 Cr.P.C. This contention of respondent is accordingly rejected.
18.The second contention of counsel for respondent was that since the pre summoning evidence lead by revisionist is silent regarding the role as to how and in what manner the respondent being the Director was incharge of or was responsible for managing day to day affairs of accused company, therefore, there is no illegality in the impugned order.
19.The said contention of respondent is not acceptable as in the latest judgment of the Hon'ble Supreme Court of India reported as A.K.Singhania Vs. Gujarat State Fertilizer Company Ltd. And anr., 2013 XI AD (SC) 1, the Hon'ble Supreme Court of india after considering the judgments delivered in SMS Pharmaceuticals Ltd.'s case (supra) and National Small Industries Corporation Ltd.'s case (supra), held as follows:
"In our opinion, in the case of offence by company, to bring its Directors within the CR NO: 84/13 7/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the company. It is necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge and responsible to Company "for the conduct of the business of the Company" within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the Act.CR NO: 84/13 8/12
CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal
20. Therefore, as per latest judgment of the Hon'ble Supreme Court of India, it is not required to explain the role of Director of accused company in managing the affairs of the company and it is sufficient to summon a Director of a company u/s 138 of the NI Act if there are averments in the complaint, as per Section 141 of the NI Act.
21.Now, let us see whether in the present case whether there are specific averments in the complaint as well as in the pre summoning evidence that respondent being the Director was incharge of managing day to day affairs of accused company. In the complaint as well as in the pre-summoning evidence, there are specific averments in terms of Section 141 NI Act against the respondent. Therefore, ld.trial court committed grave illegality in not summoning respondent as an accused by ignoring the averments and judgment of the Hon'ble Supreme Court of India delivered in A.K.Singhania's case (supra).
22.Even otherwise the role of respondent and manner in which respondent as Director was responsible for managing the affairs of the accused company, have been averred in the complaint by the revisionist. It is specifically averred that respondent being Director was incharge of managing day to day affairs of accused company and it was also specifically averred that respondent alongwith other accused had CR NO: 84/13 9/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal approached the revisionist/complainant for availing overdraft facility which was sanctioned by revisionist/complainant to the maximum limit of Rs.10 crores.
23.Further, in the memo of parties, respondent has been averred to be holding position of Director (Finance) in the accused company. The issuance of cheque by accused company is a financial transaction and ,therefore, respondent being Director (Finance) was responsible for managing the financial affairs of the accused company. Therefore, the role of respondent was clearly averred in the complaint, even though as per latest judgment of the Hon'ble Supreme Court of India, same was not required. Therefore, looking at the impugned summoning order from any angle, the same is not sustainable as it has ignored the pre-summoning evidence which has come on record against respondent and latest judgment of the Hon'ble Supreme Court delivered in A.K.Singhania's case (supra). This contention of respondent is accordingly rejected.
24.Although it is true that ld.trial court has not complied with the directions of the Hon'ble High Court of Delhi delivered in Sudeep Jain's case (supra), then also it will not affect the outcome of present revision petition as it is not the case of respondent that he was not the Director of the accused company at the time of issuance of cheque. The directions CR NO: 84/13 10/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal pertaining to filing of Form 32 and information regarding the Directors who were in charge and responsible at the time of commission of offence alongwith the complaint were passed to ensure that Directors of the accused company who had resigned or were not in charge and responsible at the time of commission of offence are not wrongly summoned.
25.However, since in the present case, ld.trial court has not summoned the respondent. Therefore, no prejudice has been caused to the respondent by non-compliance of the directions by the ld.trial court. Therefore, the judgment of the Hon'ble Delhi High Court delivered in Sudeep Jain's case (supra) is of no help to the case of respondent.
26.In the light of above discussion, since the ld.trial court has committed manifest illegality by ignoring the law of the Hon'ble Supreme Court of India delivered in A.K.Singhania's case (supra) and ignored the averments and pre summoning evidence which has come on record against respondent, therefore, the present revisional court has to step in and exercise discretion to prevent the miscarriage of justice. Accordingly, the revision petition is allowed. Impugned order qua respondent is set aside.
27.In the light of pre-summoning evidence led on record by revisionist/complainant, respondent stands summoned as an CR NO: 84/13 11/12 CR NO: 84/13 Royal Bank of Scotland Vs. Dinesh Kaushal accused for the offence u/s 138 of the NI Act.
28.Respondent to appear before the ld.trial court on the date fixed.
29.TCR be sent back alongwith a copy of order. Revision file be consigned to record room.
Announced in the open court (Vikas Dhull)
Dated: 03.02.2014 ASJ-01/Dwarka Courts
New Delhi
CR NO: 84/13 12/12