Delhi District Court
) Kasukurthi Sujata Construction P. Ltd vs Rathore Constructions Pvt. Ltd on 6 July, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
Cr. Rev. No. 155/2017
In the matter of
1) Kasukurthi Sujata Construction P. Ltd.
(Through its AR)
Office at registered office at 238/4,
Kakatitiya Nagar, Street No.1,
Habsiguda, Hyderabad500007
2) Jagmohan Rao Kasukurthi
r/o 238/4, Kakatitiya Nagar,
Street No.1, Habsiguda
Hyderabad500007
....Petitioners
Versus
Rathore Constructions Pvt. Ltd.
(Through its Director & AR Mr. Usman Rathore)
Office at: A82, Shashtri Park,
Street No.3, Shahdara, Delhi110053
....Respondent
Date of Institution 03.07.2017
Order reserved on 04.07.2018
Date of order 06.07.2018
JUDGMENT
1. This revision has been filed against the order dated 25.04.2017 passed by Sh. Prayank Nayak, Ld. Metropolitan Magistrate, East, Karkardooma Courts, Delhi, in a complaint case no. 1181/17 titled as Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 1 Of 22 Rathore Construction Pvt. Ltd. Vs Kasukurthi Sujatha Constructions Pvt. Ltd. & Others, U/s 138 of Negotiable Instrument Act (hereinafter referred as NI Act), whereby the petitioners have been summoned as accused no.1 and 2 along with other two accused persons i.e. accused no.3 to 4, the directors of the petitioner no.1. The petitioners are the company and its Managing Director who have been arrayed as accused no.1 and 2, in the original complaint.
2. The memo of parties of the complaint reads as follows: The Rathore Construction Pvt. Ltd.
(through its Director & AR Mr. Usman) Office at A82, Shastri Park, Street No.3, Shahdara, Delhi110053 Complainant Versus
1) Kasukurthi Sujatha Construction Pvt. Ltd.
(through its Chairman & MD) Registered Office: 238/4, Kakatitya Nagar, Street No.1, Habsiguda, Hyderabad500007
2) Jagmohan Rao Kasukurthi (CharimancumMD & Authorized Signatory) At: 238/4, Kakatitya Nagar, Street No.1, Habsiguda, Hyderabad500007
3) Sujata Kasukurthi, Director Kasukurthi Sujatha Construction Pvt. Ltd.
At: 238/4, Kakatitya Nagar, Street No.1, Habsiguda, Hyderabad500007
4) Rajesh Kasukurthi, Director Kasukurthi Sujatha Construction Pvt. Ltd.
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 2 Of 22 At: 238/4, Kakatitya Nagar, Street No.1, Habsiguda, Hyderbad500007
5) Radhika Kasukurthi, Director Kasukurthi Sujatha Construction Pvt. Ltd.
At: 238/4, Kakatitya Nagar, Street No.1, Habsiguda, Hyderabad500007 Accused persons (hereinafter the parties have been referred as per their nomenclature in the complaint case and the accused persons have been referred as A1 to A5).
3. In brief, the facts the present case are that the complainant company filed aforesaid criminal complaint against the accused company/A1 as well as its Managing Director/A2 and its three Directors/A3A5 with the averments that A2 is ChairmancumManaging Director as well as authorized Signatory and accused no.3 to 5 are the Directors of the company. The accused no.2 to 5 are having control, charge and responsibility of the working as well as all transactions and businesses carried out in the name of the accused no.1. It is stated that complainant company provided their services to accused no.1 in regard to the Optical Fiber Cable Construction Work and accused no.2 acknowledged the liability of accused no.1 in regard to the bills dated 25.02.2017 and 26.02.2017 and issued the cheque no. 224067 dated 15.03.2017 drawn on IDBI Bank, Nagender Nagar, Hyderabad, Telangana. The accused persons had assured that the cheque will be honoured, however, same got dishonoured. It further is stated that the Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 3 Of 22 accused persons, in connivance with each other, cheated the complainant company, thus, they are jointly and severally liable for the losses suffered by the complainant company. It is further stated that this fact was brought to the notice of all the accused persons, however, they did not make the payment of the dishonoured cheque.
4. After recording presummoning evidence, vide order dated 25.04.2017, Ld. Trial Court summoned accused company alongwith three accused persons who were arrayed in the complaint as accused no. 1 to 4, however, accused no.5 was not summoned.
5. The petitioners have now assailed the summoning order passed by ld. trial court mainly on the ground that in the instant case the ld. Trial court has not complied with the provisions of section 202 Cr. P.C. It is stated that since the accused persons are residing beyond the jurisdiction of the ld. Trial court, thus, ld. Trail court was obliged to conduct the inquiry as stipulated u/s 202 Cr.P.C. In this regard the Ld. Counsel for the petitioners has relied upon the judgements of Hon'ble Supreme Court reported as National Bank of Oman Vs. Barakara Abdul Aziz & Anr JT (12) SC 432 and Udai Shankar Awasthi Vs State of UP & Anr 2013 (2) SCC 435.
6. I have heard Ld. Counsel for petitioners as well as respondent and gone through the record. In support of his contentions, Ld. Counsel for petitioners has placed reliance upon the following case laws: i. Central Bank of India vs Asian Global Ltd. & Ors, 2010 [3] JCC [NI] 291 Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 4 Of 22 ii. Om Kr. Dhankar vs State of Haryana & Anr. Cr. Appl. No. 464 of 2012 iii. Abhijit Pawar vs Hemant Madhukar Nimbalkar & Anr. 2017 [2] JCC 1277 iv. National Small Industries Corp. Ltd. Vs Harmeet Singh Paintal & Anr. 2010 [1] JCC [NI] 86 v. Standard Chartered Bank vs State of Maharashtra & Ors etc 2016 [3] JCC [NI] 113 vi. K.S. Joseph vs Philips Carbon Black Ltd. & Anr. 2016 [3] JCC [NI] 125 vii. Netcore Solutions Pvt. Ltd. Vs Rajesh Jain etc Criminal Writ Petition No.138/2011
7. In rebuttal Ld. Counsel for the respondent has relied upon the following judgments: i. Rajesh Agarwal vs State & Anr. 171 (2010) Delhi Law Times 51 ii. Indian Bank Association & Ors vs Union of India & Ors AIR 2014 Supreme Court 2528 iii. Ambica Plastopack Pvt. Ltd. & Anr. Vs State & Anr CRL. M.C. 2698/2011 iv. Sri Baburao Chinchanasur vs Smt. Anjana A Shanthaveer Cr.
Petition No.8639 of 2016v. Dr. Rajul Ketan Raj vs Reliance Capital Ltd. & Anr. Cr.
Application No.716 of 2015vi. Piyush Bharat Saini vs Paras Gupta Cr. Misc. M. No. 5325 of 2012 vii. CRR 1600 of 2013 S.S. Binu vs. State of West Bengal & Anr.
8. The main issue in the present revision petition is that the Ld. Trial Court summoned the accused perosns without conducting a Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 5 Of 22 mandatory inquiry u/s 202 Cr.P.C although all the accused persons are having their address which is beyond the territorial jurisdiction of Ld. Trial Court. It has been contended on behalf of the petitioners that in view of the mandatory provisions of section 202 Cr.P.C., the requisite inquiry as contemplated in this provision, must be conducted in every such case where accused is putting up beyond the territorial jurisdiction of the court concerned before summoning of the accused persons.
9. To deal with the issue in hand some relevant provisions of negotiable instrument act as well as Cr.P.C along with the relevant case laws on this point are required to be noted here.
10. In this regard, the provisions of section 143, 145 and 146 of NI Act are relevant and the same reads as follows:
143. Power of Court to try cases summarily.--
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 6 Of 22 other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2)The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3)Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.
145. Evidence on affidavit.--
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2)The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
146.Bank's slip prima facie evidence of certain facts.--The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 7 Of 22
11. It is clear from the perusal of section 143 of NI Act that this provision has an overriding effect over the regular provisions of Cr.P.C and it has been legislated in this provision that the complaint filed under NI Act which includes section 138 also is to be dealt with as per the provisions of section 262 to 265 Cr.P.C. Thus, in view of section 143 NI Act, all the complaints filed u/s 138 NI Act are to be tried summarily.
12. The provisions of section 262 to 265 Cr. P. C. reads as follows:
262. Procedure for summary trials. (1) In trials under this Chapter, the procedure specified in this Code for the trial of summonscase shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
263. Record in summary trials. In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely :
(a) the serial number of the case;
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of the complainant (if any);
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub section (1) of Section 260, the value of the property in respect of which the offence has been committed;
(g) the plea of the accused and his examination (if any);
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 8 Of 22
(h) the finding;
(i) the sentence or other final order;
(j) the date on which proceedings terminated.
264. Judgment in cases tried summarily. In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.
265. Language of record and judgment. (1) Every such record and judgment shall be written in the language of the Court.
(2) The High Court may authorise any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate.
13.Thus, it is clear from the bare perusal of section 143 NI Act that every complaint filed under NI Act has to be tried summarily i.e. in terms of the aforesaid provisions mentioned in chapter XXI of Cr.P.C. and these complaints are not to be dealt with in terms of Chapter XV of Cr.P.C. procedure meant for recording presummoning evidence in the regular complaint cases.
14.There is another provision in NI Act which was incorporated by way of amendment in NI Act in the year 2002 ie section 145 NI Act and this provision also has an overriding effect over the regular procedure which is followed as per section 200 Cr.P.C. for recording evidence of the complainant and his witnesses in the regular complaint cases. The provision of sec 145 NI Act reads as follows: Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 9 Of 22
145. Evidence on affidavit. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
15.As per this special provision, the evidence of the complainant of the cases of 138 of NI Act is to be taken on affidavit. Besides, there are some other important special provisions in the NI Act which are mentioned in section 118a, 139 and 146 of the act and same reads as follows:
118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
139. Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.
146. Banks slip prima facie evidence of certain facts. The Court shall, in respect of every proceeding under this Chapter, on production of banks slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 10 Of 22
16. As per the provisions of sec 146, initially on the production of the bank slip/memo the factum of dishonour of cheque is to be presumed to be correct and as per the provisions of sec 118a it is to be presumed that every negotiable instrument is drawn against consideration and as per the provisions of sec 139, initially a presumption is to be drawn and it is to be presumed that the cheque in question was issued by the drawer of the cheque against discharge of the legally recoverable debt. Both these are rebuttable presumptions but for the purposes of summoning, the accused court is obliged to draw the said presumption and as per settled law, the accused can rebut the same at the appropriate stage.
17.Thus, it is clear from the aforesaid discussions that claim based under the provisions of negotiable instruments act are exception to the general rule of law that burden of proof lies on the prosecution. There are two specific provisions in negotiable instruments acts i.e. section 118 (a) and 139 which contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 11 Of 22 cheque was issued by the accused in discharge of debt or liability and consequently, accused has to be assumed guilty of the offence.
18.It has been held by Hon'ble Supreme Court in the case reported as 2001 (6) SCC 16 titled as Hiten P. Dalal v. Bratindranath Banerjee that the presumption mentioned in the section 139 of N.I. Act is a presumption of law and not the presumption of fact and thus, this presumption has to be drawn in favour of the drawee and burden to rebut the presumption with the probable defence is on the accused. The relevant para of the aforesaid case law reads as under:
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
[Section 3 : Evidence Act]. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'
19.It has been held by Hon'ble Supreme Court in the case of reported as 2010 (11) SCC 441 titled as Rangappa v. Mohan that presumption of section 139 of N.I. Act also includes the existence of legal Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 12 Of 22 enforceable debt. The relevant para of the said judgment reads as under:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
20.Thus, in view of the settled law, it is mandatory to initially draw presumption in favour of the complainant and initially the case has to be proceeded with the presumption that the cheque was issued by the accused against discharge of his legal liability.
21.Thus, it is clear from these discussions that the Legislation has enacted special provisions regarding trial of cases u/s 138 of NI Act which has been mandated in the NI Act itself and all these provisions have overriding effect over the regular procedure for trial of summons triable criminal complaint cases which are instituted on a complaint and for the purpose of recording presummoning evidence and summoning, these regular complaints are dealt with as per the provisions of Chapter XV. of Cr.P.C. The complaints filed u/s 138 NI Act are to be dealt with according to provisions of NI Act and at least till the time of issuance of summoning order the court cannot deviate from the procedure provided u/s 143 of NI Act.
22.In the case of Indian Bank Association vs Union of India, the Hon'ble Supreme Court has observed that there should be speedy trial of the cases u/s 138 NI Act and these complaints are to be dealt with summarily and in terms of the provisions of chaper XXI of Cr.P.C. The relevant paras of this judgment reads as follows:
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 13 Of 22
18. Amendment Act, 2002 has to be given effect to in its letter and spirit. Section 143 of the Act, as already indicated, has been inserted by the said Act stipulating that notwithstanding anything contained in the Code of Criminal Procedure, all offences contained in Chapter XVII of the Negotiable Instruments Act dealing with dishonour of cheques for insufficiency of funds, etc. shall be tried by a Judicial Magistrate and the provisions of Sections 262 to 265 Cr.P.C.
prescribing procedure for summary trials, shall apply to such trials and it shall be lawful for a Magistrate to pass sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding Rs.5,000/ and it is further provided that in the course of a summary trial, if it appears to the Magistrate that the nature of the case requires passing of the sentence of imprisonment exceeding one year, the Magistrate, after hearing the parties, record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case in the manner provided in Criminal Procedure Code.
23.In this very case the Hon'ble Supreme Court has also laid down the procedure to be followed by the trial courts while dealing with the complaint cases u/s 138 NI Act. These directions have been mentioned in para no.21 of the judgment and same reads as follows:
21. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given : DIRECTIONS:
(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 14 Of 22 (2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by email address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow up action be taken.
(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.
(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for crossexamination.
(5) The Court concerned must ensure that examinationinchief, crossexamination and reexamination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for crossexamination as and when there is direction to this effect by the Court.
22. We, therefore, direct all the Criminal Courts in the country dealing with Section 138 cases to follow the abovementioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act.
24.Thus, in view of the legal position discussed above, it is clear that due to the overriding effect of mandatory provisions of sec 143 NI Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 15 Of 22 Act, the complaint u/s 138 NI Act are to be dealt with in terms of the provisions contained in chapter XXI of Cr.P.C. and not in terms of the provisions of chapter XV Cr.P.C.
25.Thus, at the time of issuance of summons in the case of 138 NI Act, the provisions of section 202 Cr.P.C. does not come into play and at that stage the court is to follow the procedure contemplated in the afore discussed provisions of NI Act and of Chapter XXI Cr.P.C. In view of sec 143 NI Act, if required, the court may after hearing the parties also choose not to try the cases summarily. Thus, it is evident from this very provision of NI Act that initially court has to deal with these complaint cases summarily and court can change the nature of trial only after summoning of the accused.
26.Thus, in view of the settled provisions of NI Act at the stage of summoning of the accused court is to prima facie form an opinion as to whether the requirements which are necessary to constitute an offence u/s 138 NI Act have been fulfilled or not. In the case of 2000(2) SCC 745 titled as M/s Kusum Ingots & Alloys Ltd. Vs M/s Pennar Peterson Securities Ltd, Hon'ble Supreme Court has held that following requirements have to be met to constitute the offence u/s 138 NI Act:
a) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 16 Of 22
b) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
d) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
e) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
27.In the instant case, it is clear from the record that all the said necessary requirements were prima facie met with for the summoning of the accused persons. It is clear that complainant presented the cheque dt. 15.03.17 within stipulated period and as per bank memo it got dishonoured on 16.03.17 as there were insufficient funds in the bank account of the accused company. Thereafter the accused were served with the legal notice dt. 22.03.17 i.e. within one month of the dishonor of the cheque. Thereafter, on 20.04.17, the complaint was filed which is also well within limitation. Thus, in view of the settled legal position discussed above, initially a presumption was required to be drawn in favour of the complainant regarding the fact that the accused had issued the cheque in discharge of their Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 17 Of 22 liability. Thus, under these circumstances, it is clear that all legal requirements were met for summoning of the accused persons. It is pertinent to mention here that vide impugned order, the Ld. Trial court had summoned the company, its chairman and two directors i.e. A3 & 4. The A3 and & A4 had assailed the summoning order in the Criminal Revision Petition No. 154/17 titled as Sujata Kasukurthi vs Rathore Constructions Pvt. Ltd. which was allowed by this court vide order dt. 06.12.2017 and now the trial is pending only qua the accused company /A1and its Chairman/M/D i.e. A2, the signatory of the cheque.
28. Before concluding, it is necessary to discuss the contention raised on behalf of the petitioner regarding applicability of sec 202 Cr.P.C. in the present case. Ld. Counsel for petitioner has contended that the inquiry as contemplated in sec 202 Cr.P.C is mandatory in all those case where the accused is not residing within the territorial jurisdiction of the court concerned and in this regard ld. Counsel relied upon the judgment of Hon'ble Supreme Court reported as National Bank of Oman v. Barakara Abdul Aziz. The same contention was made raised in case before Hon'ble Gujarat High Court in the case reported as Modern Denim Limited through Arun Triloknath Bhargava v. State of Gujarat 2016(1) Cri.CC 111 and in this case Hon'ble High Court has categorically held that provisions of sec 202 Cr.P.C. are not applicable to the case u/s 138 NI Act. The relevant paras of this judgement reads as under: Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 18 Of 22
16. Section 143 of the Act which starts with non obstante clause provides that the offences under the Chapter XVI of the Act shall be tried by the Judicial Magistrate of First Class or the Metropolitan Magistrate and the provisions of section 262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trials. Then, it further provides for the powers of the Magistrate for conviction in summary trial and to follow further procedure as mentioned therein, if the Magistrate finds it undesirable to try the case summarily.
17. Section 144 of the Act which prescribes Mode of service of summons also starts with nonobstante clause. Section 145 then provides for giving of evidence by the complainant on affidavit which could be read in evidence in any inquiry, trial or other proceedings under the Code. Reading the above said three provisions together, it clearly appears that the process to be issued on the complaint for the offence under section 138 is as per the procedure contained in the above said provisions read with the provision of the Code for such purpose which are not to be deemed or treated excluded by virtue of nonobstante clause in section 143 to 145.
18. It appears that the basic object for providing nonobstante clause is to do away with the procedure to be followed as per section 200 to 202 in its rigidity to see that the trial of the complaint for the offence under section 138 of the Act is concluded without any inordinate delay. Therefore, when section 143 of the Act provides that the provisions of section 262 to 265 of the Code shall, as far as may be, applied to the trial for the offence under section 138 of the Code, the legislature while employing the nonobstante clause intended to permit following simple procedure meant for trial of summons cases by the Magistrate and such provisions would override the requirement of holding inquiry under section 202 of the Code before issuing process to the accused residing out side the jurisdiction of the Magistrate.
19. Reliance placed by Mr. Dave in the case of National Bank of Oman (supra) to press for his point that holding of inquiry by the Magistrate is mandatorily required before issuing process to the accused residing beyond the jurisdiction of the Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 19 Of 22 Magistrate will be of no help to the applicants as the complaint in the said case was not for the offence under section 138 of the Act. In such view of the matter, it is not possible to accept the contention of Mr. Dave that the mandatory requirement of holding inquiry under section 202 of the Code before issuing the process to the applicants who resided out side the jurisdiction of the Magistrate was required to be followed by the learned Magistrate.
29.In a recent case reported as S.S. Binu v. State of West Bengal Hon'ble Calcutta High Court has also held that in the case u/s 138 NI Act, the inquiry u/s 202 Cr.P.C. is not required to be conducted. In regard to the another case i.e. reported as K.S. Joseph v. Philips Carbon Black Ltd relied upon by the ld. Counsel for the petitioner, it is most humbly observed that in the said case Hon'ble Supreme Court has not made any observations regarding applicability of the provision of sec 202 Cr.P.C. in the case u/s 138 NI Act. The relevant para where the Hon'ble Supreme Court has observed the same reads as under: Since the order of the Magistrate issuing summons is clearly without due application of mind to the issue of delay, we have not gone into the detailed consideration of the correctness of submission based upon Section 202 of the Cr.P.C. and as to whether such requirement of enquiry or investigation is attracted even for offences under the Act. This question of law is therefore left open.
30.Thus, in view of the legal position discussed above no inquiry is required to be conducted in the cases of sec 138 NI Act and in the case reported as Baburao Chinchanasur v. Anjana A.Shanthaveer (Karnataka) 2017(2)AICLR656 Criminal Petition No. 8639 of 2016. D/d. 3.3.2017, it has been held by Hon'ble Karnataka High Court that Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 20 Of 22 the purpose of purpose of holding the enquiry under sec 202 Cr.P.C. is to prima facie form an opinion regarding commission of offence by accused on the basis of the material placed before the court. The relevant of the case Baburao Chinchanasur v. Anjana A.Shanthaveer reads as follows:
17. Tested on the touchstone of the above principles, it is seen that the learned Magistrate has not specifically stated in the impugned order that the order was passed under Section 202 of Cr.P.C. But, a reading of the said order on the face of it reveals that all the requirements of Section 202 of Cr.P.C. are followed therein. What could be deciphered from the impugned order is that the learned Magistrate has (i) taken into account the materials placed by the complainant; (ii) has applied his mind to find out whether prima facie case has been made out to issue process. To this extent, the impugned order has the trappings of an order under Section 202 of Cr.P.C. and satisfies the requirements thereof.
18. As held in the above decisions, the scope of an enquiry under Section 202 of Cr.P.C. is restricted to find out the truth or otherwise of the allegations made in the complaint. That purpose or objective appears to have been fulfilled in the impugned order. Learned Magistrate has clearly recorded that the sworn statement makes out the transaction in respect of which the cheque was issued. Learned Magistrate has also adverted his mind to the requirements of Section 138 of N.I. Act. More importantly, the learned Magistrate has referred to the various documents produced by the complainant including the receipt executed by the accused in acknowledgment of the receipt of the amount reflected in the cheque. Therefore, in my view, this order could be construed as one passed in compliance of Section 202 of Cr.P.C.
31.Thus, in view of the settled law, the court is to form prima facie opinion about commission of the offence while keeping in mind the fulfilment of relevant mandatory requirements. In view of the Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 21 Of 22 discussions made in the preciding paras, it is clear that that ld. Trial court rightly formed its prima facie opinion regarding commission of offence by the accused as prima facie all necessary legal requirements for the purpose of summoning of accused were met.
32.In view of these discussions, it is held that there is no infirmity in the summoning order dt. 25.04.2017, hence, the present petition is liable to be dismissed accordingly same is dismissed. Ld. Trial court is directed to proceed against the accused no.1 & 2 in accordance with law. TCR be sent back to the Ld. Trial Court along with a copy of this order for information and compliance.
Digitally signed
33.File be consigned to record room. AJAY by AJAY GUPTA
Location: Delhi
GUPTA Date:
2018.07.06
16:13:53 +0530
(Ajay Gupta)
ASJ02/ Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 06.07.2018
Kasukurthi Sujata Construction P. Ltd. Vs Rathore Constructions Pvt. Ltd. 22 Of 22