Delhi District Court
Rakesh Gupta vs M/S Canbank Factors Ltd on 4 May, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
REVISION PETITION NO. 123 of 2020
CNR No. DLSE01-001929-2020
IN THE MATTER OF:
Rakesh Gupta,
S/o Shri R C Gupta,
R/o D-54, The Pinnacle,
Golf Course Road, DLF Phase V,
Gurugram, Haryana
.......Revisionist
Versus
M/s Canbank Factors Ltd,
DDA Building, 1st Floor,
Opposite Paras Cinema, Nehru Place,
New Delhi ........Respondent
Instituted on : 13.03.2020
Reserved on : not reserved
Pronounced on : 04.05.2022
JUDGMENT
1. Vide instant petition, revisionist takes exception to the order dated 13.08.2019, whereby the joint application moved on his behalf and on behalf of co-accused (not a party herein) for discharge / dropping of Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 1 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:24:45 +0530 proceedings was dismissed by Ld Metropolitan Magistrate, NI Act, South East District, Saket Courts in case bearing CC No. 6524/2017 titled as M/s Canbank Factors Ltd Vs Vanity Enterprises Pvt. Ltd. & Ors.
2. Brief facts relevant and necessary for deciding the present revision can be taken note of: A criminal complaint under section 138 of Negotiable Instruments Act, came to be filed on behalf of respondent company through its Authorized Representative against the revisionist/accused no.2 and other co-accused with the allegations that latter issued four cheques for an amount of Rs.6,45,750/-, Rs.7,74,900/-, Rs.7,31,850/- and Rs.8,61,000/- in discharge of their legal liabilities. However, same got dishonoured on presentation with the remarks 'payment stopped by drawer' vide cheque return memos all dated 14.06.2014 and despite issuance of demand notice dated 08.07.2014, no payment was made. Thereafter, the criminal complaint was filed against the revisionist and other co-accused for offence under section 138 NI Act.
3. Record reveals that post appearance of accused, a joint application under section 251 Cr.PC read with section 258 Cr.PC was moved on behalf of revisionist and other co-accused seeking discharge / dropping of proceedings. Ld Trial Court vide impugned order dismissed the said application of revisionist with following observations :-
"Having heard both the parties, it is clear that the contention raised by the parties can only be proved by leading cogent evidence during the trial and not on the basis of mere averments.
It was held in Subramanium Sethuraman vs State of Maharashtra & Anr on 17th September, 2004 that:
Discharge, Review, Reconsideration, Recall of order of issue of process u/s 204 Cr.PC is not contemplated under Cr.PC in summons Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 2 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:24:58 +0530 case. The case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. Once process issued, notice u/s 251 Cr.PC has to be framed and the matter has to be proceeded with trial. There is no provision as to drop the proceedings and discharge the applicant.
Also, it was held in Adalat Prasad Vs. Rooplal Jindal & Ors that the only remedy available to an aggrieved applicant to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code. There is no power with the Magistrate to review the order and recall the summons issued to the applicant.
Further, in the case of R.K. Aggarwal Vs. Brig Madan Lal Nassa Crl MC No.1507/15 decided on 13.06.2016, while relying upon Amit Sibbal Vs. Arvind Kejriwal (Criminal Appeal No.1101/2016), Delhi High Court expressly recognised the absence of power of discharge in summons case. It held that firstly there is no stage of discharge in summons case. Under Chapter 20 of the Cr.PC after filing of complaint in a summons case, the applicant is either convicted or acquitted.
Hence, in view of the above, the application moved by the applicant is dismissed.
Put up for filing of application u/s 145(2) N.I. Act on 24.09.2019."
4. The revisionist is aggrieved with the said order and has assailed the same on various grounds which can be summarized as under :-
i) That the impugned order is against the settled principle of law;
ii) That Ld Trial Court erred in law by not appreciating that there is no admissible evidence against the revisionist;
iii) That Ld Trial Court failed to consider the available records i.e. Factoring Cum Prepayment Agreement (Domestic
- Sale bill /Invoice dated 27.01.2014 as well as facts and circumstances of the case;
iv) That Ld Trial Court failed to appreciate the fact that revisionist had not issued the cheque in question rather he stood as guarantor and did not avail the facility of factoring;
v) That Ld Trial Court failed to appreciate that complainant Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 3 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:25:08 +0530 did not even mention the legal liability of revisionist;
vi) That Ld Trial Court failed to appreciate that mere allegation without any document to substantiate is not enough to prove the fact that any legal liability existed against the revisionist.
5. No arguments were addressed on behalf of revisionist despite repeated opportunities and therefore, instant petition is being disposed of on the basis of material available on record. Revisionist cited following judgments in his petition :-
a) N K Wahi Vs Shekhar Singh & Ors, 2007 (1) JCC NI 112,
b) Ashok Sikka & Ors Vs State, (II) AD (DHC) 143,
c) SMS Pharmaceutical Ltd Vs Neeta Bhalla & Anr, 2007 (1) JCC (NI) 73,
d) Kishan Kumar Variar Vs Share Shoppe, (2010) 12 SCC
e) Bhushan Kumar Vs State of NCT of Delhi, (2012) 5 SCC 424,
f) Arvind Kejriwal Vs Amit Sibal & Anr, Crl MC 5245/2013,
g) Raujeev Taneja VS NCT of Delhi, Crl MC 4733/2013,
h) Urrshila Kerkar Vs Make My Trip Pvt Ltd,
i) R Narayan Vs State, WP (Crl) 1650/2016
j) Reenu Kant Vs Surya Knitwears, Crl M 4248/11
6. I have perused the record.
7. The plea of revisionist that Ld Trial Court erred in law by not discharging him, is devoid of any merit as it is settled law that there is no provision for discharge in a 'summon triable' case and once an accused (revisionist herein) is summoned to face trial by a Criminal Court and no challenge being made to such order, the next stage as per scheme of criminal procedure code would be to serve notice upon him and Criminal Court does not have power to discharge an accused in the summon triable case.
8. Reliance is placed upon judgment of Hon'ble Apex Court in Amit Sibal vs. Arvind Kejriwal & Ors., (2018) 12 SCC 165, wherein Hon'ble Supreme Court set aside order of Hon'ble Delhi High Court wherein Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 4 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:25:21 +0530 Hon'ble Delhi High Court had held that the Magistrate shall be empowered to discharge/drop the proceedings at the stage of framing notice under Section 251 of the Code, if no case is made out. Hon'ble Supreme Court accepted the contention of learned counsel for petitioner that in a complaint case where summoning order has been issued and the order permitting the respondents to raise such contentions at the stage of framing of notice and directing the magistrate to consider the same and pass appropriate order, is contrary to law.
9. In Subramanium Sethuraman Vs. State of Maharashtra and Anr., Appeal (Crl.) 1253 of 2002 decided on 17.09.2004, Hon'ble three- Judge Bench of Hon'ble Supreme Court observed that the case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case.
10. In the wake of aforesaid settled principle of law, the view taken by Ld Trial Court cannot be faulted with in the instant case.
11. Further, as far as dropping of proceedings under section 258 Cr.PC is concerned, suffice it would be to say that the said statutory provisions are applicable in a summon triable case which is instituted otherwise than upon a complaint i.e. a case instituted upon a police report popularly known as 'State Case'. The said provisions specifically excludes a private criminal complaint like the case in hand (in a summon triable case) from its purview.
12. Apex Court recently in Re: Expeditious Trial of Cases under Section 138 N.I.Act, 1881. Suo motu Writ Petition (Crl.) No. 2 of 2020 Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 5 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:25:31 +0530 D.O.D. 16.04.2021, 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 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 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."
Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 6 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:25:40 +0530
13. Further, Andhra Pradesh High Court in case Deevi Srinivasa Sai Radha Lakshmi & Anr vs State Of Andhra Pradesh , Criminal Petition No.648 of 2015 dated 31-03-2015, held as under :-
" 5) Upon hearing both sides and on perusal of record, I find no merits in the petition. This is a case instituted on private complaint and it is a summons case. So, the procedure contemplated under Sections 251 to 259 is applicable to the case on hand. Section 258 deals with powers of Magistrate to stop proceedings in certain cases, which reads thus:
258. Power to stop proceedings in certain cases: In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
Under Section 258 of the Code, in appropriate cases, the Magistrate can stop the proceedings at any stage without pronouncing judgment. If stoppage of proceedings is effected after recording the evidence of principal witnesses, Magistrate has to pronounce the judgment of acquittal and in any other case, the Magistrate can release the accused and such release has an effect of discharging the accused. The underlying principle in empowering the Magistrate to stop the proceedings without pronouncing the judgment or pronouncing judgment of acquittal or releasing the accused is to prevent miscarriage of justice i.e. upon finding that there is no material to proceed further and such proceeding amounts to abuse of process of law and resulting in undue harassment to the accused. What is to be noted from Section 258 Cr.P.C. is that it applies only to those cases which are instituted on police reports but not to the cases instituted upon private complaints. This was made clear in the following judgments.
a) In John Thomas v. K.Jagadeesan Apex Court held thus: One of the normal rules in summons cases is that once trial started, it should reach its normal culmination. But Section 258 is included in the Chapter XX of the Code in the form of an exception to the aforesaid normal progress chart of the trial in summons cases. But by S.258 the power of Court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all.
b) Similar view was taken in another decision reported in Manjunath C.Kammar v. A.Kanthilak and Company wherein Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 7 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:25:49 +0530 Karnataka High court held thus:
10. In these two matters, the proceedings are initiated on the basis of the complaints under Section 200 Cr.P.C. Under such circumstances, the learned Magistrate does not get Jurisdiction to proceed under Section 258 Cr.P.C. and the same can be exercised only if the proceedings are instituted otherwise than upon a complaint. In other words, the language of Section 258 Cr.P.C. is clear that this Section applies only to cases based on police report. As the present cases are based on private complaints, Section 258 Cr.P.C. will not apply to these cases.
Therefore, from Section 258 Cr.P.C. and above precedential jurisprudence, it is clear that stoppage of proceeding at different stages as contemplated under Section 258 Cr.P.C. can take place only in those cases instituted otherwise than upon a complaint. As already stated, since the case on hand is one instituted upon private complaint, the benefit under Section 258 Cr.P.C. cannot be extended to it. So far as other points raised by the petitioner/A2 is concerned, the trial Court rightly held that whether the complainant deposed falsehood with regard to timing of the offence and other material facts or not can be decided only after due trial. In this petition the same cannot be determined which will amount to premature conclusion. So, at the outset, the impugned order does not suffer any illegality or irregularity warranting interference."
14. Therefore, in view of settled position of law, I am of the considered view that the approach adopted by Ld. Trial Court while dismissing the application of revisionist for discharge / stoppage of proceedings against him, is found to be fully justifiable and there is no jurisdictional error on this count.
15. Before parting, I may hasten to add that the revisionist is not absolutely remediless. If he feels that there is no case against him, nothing stops him from applying for a summary judgment by the Ld. Trial Court.
Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 8 of 9
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.04
14:25:58 +0530
16. In light of aforesaid discussions, this court finds no valid reasons to interfere in the order dated 13.08.2019 passed by Ld Trial Court. None of the judgments cited by revisionist comes to his aid in the factual matrix of present case.
17. The revision petitions stand dismissed accordingly.
18. TCR be sent back to Ld Trial Court along with copy of this judgment.
19. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.05.04 14:26:07 +0530 Announced in the open (ANUJ AGRAWAL) Court on 04th May 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 123/2020 Rakesh Gupta Vs M/s Canbank Factors Ltd Page No. 9 of 9