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[Cites 18, Cited by 0]

Delhi District Court

Seema Asthana vs Jaideep Arora on 13 May, 2022

            IN THE COURT OF MS. DEEPALI SHARMA
              ADDITIONAL SESSIONS JUDGE­04
       EAST DISTRICT : KARKARDOOMA COURTS: DELHI


CNR No. DLET01­009630­2019
Cr. Rev No. 289/2019

Seema Asthana,
W/o Shailesh Asthana,
R/o 24043, ATS Paradeso,
Greeter Noida, Uttar Pradesh.
                                            ..... Petitioner
Versus

Jaideep Arora,
S/o Late Sh. Amar Nath Arora,
R/o F­11/16, Krishna Nagar,
Delhi­110051.                               ..... Respondent


Date of Institution          :        21.11.2019
Date of reserving Judgment   :        11.05.2022
Date of pronouncement        :        13.05.2022


Appearances

For the Petitioner           : Sh. Brijesh Kumar Singh, Adv.
For the Respondent           : Sh. Ashish Upadhayay, Adv.

JUDGMENT

CR No. 289/2019 Page 1 of 11 ASJ­04/KKD/Delhi

1. The present revision petition has been filed by the petitioner assailing the order dated 11.01.2019 passed by the Ld. M.M. in CC No. 5112/2018, u/s 138 of Negotiable Instruments Act (hereinafter referred as N.I.Act). Vide said order dated 11.01.2019 the Ld. M.M. took cognizance of the offence u/s 138 of the N.I.Act and issued summons to the present revisionist in the complainant case.

2. It is urged by the ld. Counsel for the respondent that the present revision petition is not maintainable against the summoning order and in that regard, he has relied upon the order passed by the Ld. Sessions Court in revision petition filed by co­accused Poonam Singh wherein the revision petition against the said order dated 11.01.2019 was held to be not maintainable. It is urged that the said revision petition was also challenged before the Hon'ble High Court and the Hon'ble High Court also upheld order dated 11.01.2019 passed by the Ld. M.M.

3. In this regard it is pointed out by the ld. Counsel for the revisionist that the order dated 08.09.2021 passed by the Hon'ble High Court has not gone into the issue of maintainability of a revision petition against the summoning order and has decided the matter on merits. He has further relied upon judgment of the Hon'ble Supreme Court in case Om Kumar CR No. 289/2019 Page 2 of 11 ASJ­04/KKD/Delhi Dhankar v. State of Haryana & Anr., (2012) 11 Supreme Court Cases 252, wherein it was held as under :

"8. The counsel for the appellant is not present. However, from the special leave petition, it transpires that two questions have been raised, namely (i) whether the criminal revision petition against the order of summoning is maintainable? and (ii) whether in the facts and circumstances of the present case, the sanction under Section 197 of the Code of Criminal Procedure (CrPC) is required?
9. Insofar as the first question is concerned, it is concluded by a later decision of this Court in Rajendra Kumar Sitaram Pande v. Uttam 2. In Rajendra Kumar Sitaram Pande case2 this Court considered earlier decisions of this Court in Madhu Limaye v. State of Maharashtra 3, V.C.Shukla v. State4, Amar Nath v. State of Haryana5 and K.M.Mathew v. State of Kerala6 and it was held as under : (Rajendra Kumar case2. SCC p.137, para 6) "6. ....This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar undersub­section (2) of Section 397 would apply.

On the other hand, it must be held to be intermediate or quasi­final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same."

10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 CrPC was available to Respondent 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly."

4. Ld. Counsel has also relied upon another judgment of the Hon'ble Supreme Court in case Rajendra Kumar Sitaram Pande & Others vs. Uttam and Another, (1999) 3 Supreme Court Cases 134, wherein it was held as under :

"6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub­section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression "interlocutory order" has not been defined in the Code. In Amar Nath & Ors. vs. State of Haryana 1978(1) SCR 222, this Court has held CR No. 289/2019 Page 3 of 11 ASJ­04/KKD/Delhi that the expression "interlocutory order" in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". In Madhu Limaye vs. State of Maharashtra 1978(1) SCR 749, a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla vs. State 1980(2) SCR 380, this Court has held that the term "interlocutory order"used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub­ section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub­section (2) of Section 397 of the Code."

5. Accordingly, it emerges from the above that an order directing issuance of summons is an intermediate or quasi­final order and therefore, the revision against the said order is maintainable u/s 397 Cr.P.C.

6. In the present case the respondent/complaint filed a complaint case u/s 138 of the N.I.Act stating therein that the accused no. 1 company is unlisted public company incorporated on 16.3.2015 under the provisions of the companies Act 1956 having its registered office in Delhi. The accused No. 1 company is engaged in business of tour and traveler organizers. The accused no. 2 to 4 are the Directors of the accused no. 1 CR No. 289/2019 Page 4 of 11 ASJ­04/KKD/Delhi company and wholly responsible for the conduct of the accused company. The affairs of the accused no. 1 company are managed by accused no. 2 to 4 and as such they are in control of the affairs of the accused no. 1 company & liable for all the acts and deeds committed by the accused no. 1 company. It is stated that the wife of the complainant is the owner of the commercial unit bearing number 1021, plot no. A­40, Ithum Tower, Sector­62, Noida, Unit. The said unit was let­out for rent to the accused no.1. The accused number 2 asked for interest free financial help for a sum of rupees 10 lac, from the complainant. Considering the relations between them, the complainant agreed to give an interest free friendly loan and on 25/05/2018 the complainant issued a cheque of Rs. 10 Lac bearing number 902506 in favour of Asia Travel & Tours (ATT) Pvt. Ltd. for 3 months only. Besides that, the accused no. 2 also executed an agreement in this respect on same day towards the said friendly loan. The above said cheque was dully encashed on its presentation in the account of the accused persons. The accused persons in discharge of their liabilities and to fulfill their commitments, issued the cheque bearing number 574873 of Rs. 10/­ Lac, dated 20.10.2018 from the account of Punjab National Bank, Anand Vihar, Delhi­92 with the assurance that the same will be honoured on its presentation. However, the cheque was dishonoured on its presentation and was returned vide memo dated 18.10.2018 with the endorsement "Account Blocked". Thereafter, the CR No. 289/2019 Page 5 of 11 ASJ­04/KKD/Delhi complainant sent a legal notice dated 05.11.2018 to all the accused persons demanding therein the payment of Rs. 10 Lacs within 15 days of the receipt of notice. The above notice of demand was received by the accused persons on 12.11.2018, as per the report of postal department. The accused failed to comply with the legal notice and after receiving the demand notice dated 05.11.2018 vacated the commercial unit on 15.11.2018. Non­compliance of the notice proves that the accused persons cheated the complainant and thus committed the offence of cheating.

7. It is contended by the ld. Counsel for the petitioner that the revisionist was not involved in day­to­day activities of the company. It is further stated that in the present complaint there is no specific averments regarding issuance of cheque, which is basis of present case, against the present revisionist either in the legal notice or in the complaint. It is further stated that the petitioner/revisionist is not involved in regular affairs of the company and is admittedly not the signatory of the cheque nor there are any allegations in the complaint that she played any role in issuance of the cheque in issue. There are no allegations of any knowledge of the alleged friendly loan. It is stated that the petitioner is wife of Managing Director of the company and is not involved in the activities of the company. It is stated that even perusal of the complaint CR No. 289/2019 Page 6 of 11 ASJ­04/KKD/Delhi itself indicates that the alleged friendly loan was given to the co­accused and there is no allegation qua the petitioner in the transaction of taking the loan. In fact there is no mention of any role played by the present petitioner either in the legal notice or in the complaint regarding the role played by the present petitioner. It is stated that it is settled law that there must be specific averments and the complaint should spell out as to how and in what manner accused is incharge of and responsible to the accused company for the conduct of its business at the relevant time. It is stated that other person connected with the company would not fall within the ambit of Section 141 of N.I.Act and only those persons, who are incharge of and responsible for the conduct of the business of the company, would be liable.

8. Reply has been filed by the respondent/complainant, who has urged that the respondent no. 1 company is managed and controlled by the other accused persons including the petitioner Seema Asthana, being the Director of accused no. 1 company. It is also contended that she being the owner of the commercial unit had let out the unit to accused no. 1 company and thereafter the accused had taken interest free loan amounting to Rs. 10 Lacs for three months from the complainant, which was given through a cheque in discharge of the said liability. The said cheque got dishonoured and hence the respondent/complainant filed the CR No. 289/2019 Page 7 of 11 ASJ­04/KKD/Delhi present complaint u/s 138 N.I.Act. It is urged that the affairs of accused no. 1 company are managed by accused no. 2 to 4 including the revisionist, who is accused no. 3, and as such they are in control of the affairs of accused no. 1 company and are liable for all the acts and deeds of accused no. 1 company. It is urged that the revisionist was a director of accused no. 1, which fact is duly established / evident from the documents filed by the complainant alongwith the complaint. The counsel for the complainant/respondent has relied upon the judgment of the Apex Court in A.R.Radha Krishna v. Dasari Deepthi decided on 28.02.2019 to contend that a criminal complaint u/s 138 of Negotiable Instrument Act should continue if there are sufficient averments on record against the accused and unless evidence of unimpeachable quality has been brought on record by the accused to indicate that allowing the proceedings to continue would be an abuse of process of the court.

9. The ld. Counsel for the revisionist has also placed on record the order of the Hon'ble Delhi High Court in Criminal M.C. 1118/2021 decided on 08.09.2021 titled as Poonam Singh v. Jaideep Arora by which the Hon'ble Delhi High Court dismissed the petition of co­accused Poonam Singh whereby she had challenged the order impugned herein dated 11.01.2019, to contend that the said order of the Hon'ble Delhi High Court has dismissed the petition of the co­accused on merits, while CR No. 289/2019 Page 8 of 11 ASJ­04/KKD/Delhi holding that as to whether the petitioner therein actually resigned on 24.07.2018 as a Director from the accused company or the subsequent resignation letter was filed to absolve her of the liability is a matter to be decided during course of the trial. It is stated that in the present case the petitioner i.e. accused Seema Asthana was merely a Non­Executive Director of the company as per Form DIR and hence, she was not responsible for day­to­day affairs of the company and therefore, the order summoning the petitioner ought to be set aside on that ground.

10. The counsel for the petitioner has placed reliance upon the judgments in the matter of Chanakya Bhupen Chakrawarti v. Rajeshri Karwa, (2019) 214 Comp.Cas294, the Hon'ble Supreme Court in Pooja Ravinder Devidasani v. State of Maharashtra, 2014 16 SCC1 and N.K.Wahi v. Shekhar Singh & Ors., 2007 9 SCC 481, in support of his contentions.

11. A perusal of Form DIR 12 annexed with the rejoinder filed by the petitioner indicates that the petitioner is a Non­Executive Director of the company. The said fact is not controverted by the Ld. Counsel for the Respondent. He has however contended that Ms. Poonam Asthana whose revision petition against the impugned order dated 11.01.2019 was dismissed by the Hon'ble High Court of Delhi vide order dated CR No. 289/2019 Page 9 of 11 ASJ­04/KKD/Delhi 08.09.2021 titled as Poonam Singh v. Jaideep Arora was also a Non Executive Director of the Company like the present Petitioner, even though she had taken a stand before the Hon'ble High Court that she was not a director on the date of issuance of cheque. He has placed on record DIR 12 in support of the said contention.

12. In this regard it would be relevant to note that in its order dated 08.09.2021, the Hon'ble Delhi High Court has observed as follows:

"7. Learned counsel for the petitioner further contends that there is no averment in the complaint that the petitioner had any role to play in either demanding the money or executing the cheque or dishonour thereof. In this regard as already noted above averment in para 2 of the complaint are clear wherein the respondent has stated that the accused no. 2 to 4 are the Directors of accused no.1 company and wholly responsible for the conduct of the company. Further the affairs of the accused No.1 company are managed by accused 2 to 4 and as such they are in control of the affairs of the accused No.1 company and liable of all the acts and deeds committed by the accused No.1 company.
8. As held by the Hon'ble Supreme Court in the decision reported as (2005) 8 SCC 89 'S.M.S. Pharmaceuticals vs. Neeta Bhalla' the complainant is required to disclose necessary facts which make the person liable for the offence under Section 138 Negotiable Instruments Act and the necessary averments in this regard are mentioned in para 2 of the complaint as noted hereinabove.''
13. Accordingly, in view of the fact that the case of petitioner is similar to the case of co­accused Poonam Singh, whose revision petition has already been dismissed by the Hon'ble Delhi High Court dated 08.09.2021, I do not find any ground to set aside the summoning order dated 11.01.2019 passed by the Ld. MM with regard to the petitioner CR No. 289/2019 Page 10 of 11 ASJ­04/KKD/Delhi (herein). The revision petition is accordingly dismissed.

14. TCR be sent back alongwith copy of this judgment.

15. File be consigned to the Record Room.

                                                             order
                                                DEEPALI      Digitally signed by
                                                             DEEPALI SHARMA
                                                SHARMA       Date: 2022.05.13
                                                             15:03:17 +0530


(Pronounced in the open Court                 (Deepali Sharma)
on 13th day of May 2022)                  Additional Sessions Judge­04
                                           East District, Court No. 10,
                                          Karkardooma Courts, Delhi




 CR No. 289/2019                Page 11 of 11                        ASJ­04/KKD/Delhi