Delhi District Court
Mrs. Anju Khanna vs Allahabad Bank on 31 August, 2021
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IN THE COURT OF SH. DHARMENDER RANA,
ADDL. SESSIONS JUDGE-02, New Delhi DISTRICT
In Crl. Revision No. 06/2020
Case No. 105/2020
CNR No. DLND01-000218-2020
1. Mrs. Anju Khanna
W/o Sh. P.N. Khanna
2. Sh. Sanjay Khanna
S/o Sh. P.N. Khanna
3. Sh. Sandeep Khanna
S/o Sh. P.N. Khanna
All R/o 150, Sector-4,
IMT Manesar, Haryana. ... Revisionists
Versus
Allahabad Bank,
Through its Authorized Representative
Head Office at 2, Netaji Subhash Marg,
Kolkata.
Branch at: Industrial Finance Branch,
17, Parliament Street,
New Delhi-110001. ... Respondent
(Arising out of order dated 04.12.2019 in CC
No.28450/2016 titled as Allahabad Bank Vs. M/s
Adigear International & Ors.)
Petition received on assignment : 09/01/2020
Arguments on petition concluded : 26/08/2021
Date fixed for pronouncement : 31/08/2021
Date of pronouncement : 31/08/2021
ORDER
1. By way of the instant order, I propose to dispose of the present revision filed on behalf of Ms. Anju Khanna and his sons namely Sh. Sanjay Khanna and Sh. Sandeep Khanna (hereinafter referred to as 'Revisionists') impugning the order dated 04/12/2019, whereby the Ld. Trial Court refused to Mrs. Anju Khanna & Ors. Vs. Allahabad Bank Case No. 105/2020
- 2- discharge the revisionists in a 138 N.I. Act case filed against them by the Allahabad Bank (hereinafter referred to as 'Respondent').
2. Shorn off all unnecessary details: Short question involved in the instant revision petition is that whether the accused persons (revisionist herein) can be discharged in Section 138 N.I. Act proceedings pending against them?
Relying upon the judgment of the Ld. Apex Court in case titled as "Subramanium Sethuraman Vs. State of Maharashtra", (2004) 13 SCC 324, the Ld. Trial Court has answered the question in negative.
For the sake of convenience the relevant portion of the impugned order is reproduced herein as under:-
"8 Here it is impending to refer to the Full Bench judgment of the Hon'ble Supreme Court of India in "Subramanium Sethuraman Vs. State of Maharashtra", (2004) 13 SCC 324 and Adalat Prasad Vs. Rooplal Jindal, (2004) 7 SCC 338, wherein the powers of trial court to discharge the accused at various stages have been discussed at length. The Hon'ble Apex Court in Subramanium Sethuraman (supra) specifically reiterated that once plea of guilt of the accused is recorded, there is no power with the Magistrate to the discharge. The Hon'ble Apex Court even reaffirmed the stand taken in Adalat Prasad case (supra), the relevant paragraphs of which are reproduced herein -
"But after taking cognizance of the complaint and examining the complainant and witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case [(1992) 1 SCC 217 : 1992 SCC (Cri) 88] that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Section 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.
Mrs. Anju Khanna & Ors. Vs. Allahabad Bank Case No. 105/2020
- 3- It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in a contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Court because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking section 482 of Code of Procedure.
Therefore, in our opinion the observation of this Court in the case of Mathew [{1992} 1 SCC 2017; 1992 SCC (Crl.) 88 ] that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code which has not provided for review and prohibits interference at inter locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew [{1992} 1 SCC 2017; 1992 SCC (Crl.) 88 ] that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.
9. From the dictum and the reading of the Code, 1973 it is clear that there is no provision contemplated by the framers of the Code for discharge of accused persons in summary trial cases once the summons under Section 204 is issued."
3. I have heard and considered the submissions made by Ld. Counsel for revisionist and also Ld. counsel for respondent and also gone through the material available on record.
4. I am of the considered view that the Ld. Trial Court has rightly relied upon dicta of the Hon'ble Apex Court in the matter of Subramanium Sethuraman (supra) while dismissing the application for discharge moved by the revisionists. The Ld. Counsel for the revisionists has not only failed to bring any contrary binding precedent to my notice rather, during the course of arguments, he fairly conceded that no fault could be ascribed to the approach of the Ld. Trial Court in rejecting the prayer of discharge of the revisionists.
5. Furthermore, recently in the matter of In Re: Expeditious Trial of Cases under Section 138 N.I.Act, 1881. Suo motu Writ Petition (Crl.) No. 2 of 2020 D.O.D. 16.04.2021, Hon'ble Apex Court has observed as under:-
"19. In Meters and Instruments (supra), this Court was of the opinion that Section 143 of the Act confers implied power on the Magistrate to Mrs. Anju Khanna & Ors. Vs. Allahabad Bank Case No. 105/2020
- 4- discharge the accused, if the complainant is compensated to the satisfaction of the court. On that analogy, it was held that apart from compounding by the consent of the parties, the Trial Court has the jurisdiction to pass appropriate orders under Section 143 in exercise of its inherent power. Reliance was placed by this Court on Section 258 of the Code to empower the Trial Courts to pass suitable orders.
20. Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply "as far as may be" to trials of complaints under Section 138. Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore, Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. The judgment of this Court in Meters and Instruments (supra) in so far as it conferred power on the Trial Court to discharge an accused is not good law. Support taken from the words "as far as may be" in Section 143 of the Act is inappropriate. The words "as far as may be" in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judge's duty is to interpret and apply the law, not to change it to meet the Judge's idea of what justice requires. The court cannot add words to a statute or read words into it which are not there.
21. A close scrutiny of the judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) would show that they Mrs. Anju Khanna & Ors. Vs. Allahabad Bank Case No. 105/2020
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do not warrant any reconsideration. The Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. As held above, this Court, in its anxiety to cut down delays in the disposal of complaints under Section 138, has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation. However, amendment to the Act empowering the Trial Court to reconsider/recall summons may be considered on the recommendation of the Committee constituted by this Court which shall look into this aspect as well."
6. In view of the above, I cannot but disagree with the Ld. Counsel for revisionists that the impugned order is bad or erroneous in law. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
7. Considering the totality of circumstances, I do not find any illegality, infirmity, impropriety in the findings of the Ld. Trial Court. Consequently, placing reliance upon the observations made by Hon'ble Delhi High Court Court in the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 the present revision petition deserves to be dismissed.
Mrs. Anju Khanna & Ors. Vs. Allahabad Bank Case No. 105/2020
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8. Unsuccessful in his attempt to convince this Court regarding the impropriety in the impugned order, Ld. Counsel for revisionists has argued that he may be permitted to assail the summoning order.
Admittedly, the summoning order in the trial court proceedings was passed way back around six years ago on 01/05/2015 and much water has already flown under the bridge thereafter. In my considered opinion, the discretion vested in a revisional court cannot be exercised favorably in favour of a litigant, who had been sleeping over his right for years altogether. If the revisionists had any grievances against the summoning order, they should have exercised their legal remedies then and there. Now at this belated stage, they cannot be permitted to circuitously assail the summoning order, circumventing the law of limitation altogether.
9. Further, the revisionists are not absolutely remediless. If the revisionists feel that there is no case against them and they deserve to be discharged, nothing stops them from applying for a summary judgment by the Ld. Trial Court. It appears that the revisionists are simply interested in delaying the matter on mere technicalities than seeking just adjudication of the dispute.
10. Considering the totality of circumstance, I am of the considered opin- ion that the present revision petition is bereft of merits and same is accordingly dismissed.
11. Trial Court Record be sent back with the copy of this order.
12. Copy of this order be also given dasti to the revisionists and the in- stant order be uploaded on the court website.
13. File be consigned to Record Room after due compliance.
Announced in the open court
On 31/08/2021 (Dharmender Rana)
ASJ-02/NDD/PHC/ND
Mrs. Anju Khanna & Ors. Vs. Allahabad Bank
Case No. 105/2020
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In Crl. Revision No. 06/2020
Case No. 105/2020
CNR No. DLND01-000218-2020
Anju Khanna & Anr Vs. Allahabad Bank.
31.08.2021
Present: Revisionist present through VC.
Vide separate order of even date, the present revision petition is dismissed.
Copy of this order be sent to the Ld. Trial Court as necessary information.
Copy of this order be given dasti to all the concerned. File of revision petition be consigned to Record Room.
(Dharmender Rana) ASJ-02/NDD/PHC/ND 31.08.2021 Mrs. Anju Khanna & Ors. Vs. Allahabad Bank Case No. 105/2020