Delhi District Court
Pradeep Singh vs Geeta Singh on 13 September, 2017
IN THE COURT OF RAKESH KUMAR SHARMA,
SPECIAL JUDGE (PC ACT) CBI-02 CENTRAL,
TIS HAZARI COURTS, DELHI
CR No. 135/2017
Pradeep Singh
r/o 624/A, S-1, Shalimar Garden Extension,
Sahibabad, Ghaziabad, Uttar Pradesh.
........ Petitioner/ Accused
Versus
Geeta Singh
w/o Sh. Ajay Pratap Singh,
r/o 67, Republic Road, Melville,
New York, USA.
.......Respondent/ Complainant
Date of Institution : 24.03.2017
Date of order : 13.09.2017
JUDGMENT
1. This is a revision petition filed by accused(before the Trial Court) against order dated 11.07.2016 passed by the Trail Court (hereinafter 'the impugned order') whereby in a complaint under Section 138 of the Negotiable Instruments CR NO. 135/17 1 Pradeep Singh vs. Geeta Singh Act filed by the complainant (respondent herein), he has been summoned.
2. Written arguments were filed by the complainant.
3. I have heard counsels for the parties and have also gone through the record including the Trial Court record as well as the authorities relied upon by them.
4. Before deciding the revision petition, I shall dispose of an application U/s 216 Cr.PC filed by the complainant (respondent herein). By way of the application, the complainant has prayed for a direction to the Ld. Trial Court to add the charge U/s 420/468/471/120 B IPC and prosecute the accused for the said offences/ charge. It is stated in the application that cheque in question was issued by the accused in repayment of a personal debt against his personal liability. The complainant has no claim against the company (the other accused in the complaint), which has been impleaded as a performa party only. The accused has CR NO. 135/17 2 Pradeep Singh vs. Geeta Singh no relation with the company and has misused the cheque of the company to play fraud upon the complainant to cause wrongful gain to himself and wrongful loss to the complainant deliberately and willfully. There is prima facie evidence that the accused forged 4-5 cheques with fraudulent intent and used the cheques as genuine without any authority to defraud the complainant. Counsel for the complainant relied upon the following authorities in support of the application :-
(a) Judgment dated 05.04.2004 passed by Hon'ble Supreme Court in Appeal (Crl.) 421 of 2004, Hasanbhai Valabhai Qureshi vs. State of Gujarat, as reported in Indian Kanoon.
(b) Judgment dated 10.10.1969 passed by Hon'ble Supreme Court in Criminal Appeal no. 260 of 1968 Kantilal Chandulal Mehta Vs. State of Maharashtra.
5. Counsel for the accused opposed the application without filling a reply.
6. The application has been filed under section 216 Cr.PC. Chapter XVI Cr.P.C. deals with commencement of CR NO. 135/17 3 Pradeep Singh vs. Geeta Singh proceedings before magistrates. The impugned order has been passed U/s 204 Cr.PC which falls in chapter XVI. The matter before the Trial Court is at the stage of Section 204 Cr.PC. The accused has not appeared before the Trial Court in view of the interim order passed by predecessor of this court.
7. Chapter XVII Cr.P.C. pertains to the charge. Hence, it is obvious that the stage for framing of charge against the accused has not come yet before the Trial Court. There is no order of charge/ notice passed by the Trial Court. Hence, it cannot be said that the complainant is aggrieved by any order passed by the Trial Court. Even otherwise, there is no such prayer made by the complainant before the Trial Court i.e. to summon the accused for the offences U/s 420/468/471/120 B IPC. In fact, the facts stated in the application as noted in para no. 4 of this judgment have not at all been stated by the complainant in his complaint filed before the Trial Court. Hence, I am of the considered view that the application is not maintainable before this Court and CR NO. 135/17 4 Pradeep Singh vs. Geeta Singh has no merits.
8. I have carefully gone through the authorities relied upon by the complainant in support of the application. There can not be any dispute about the propositions of law laid down in the authorities but it is a settled law that each case is to be decided according to its own facts. I am of the considered view that facts in the present case are materially different from those in the authorities. In neither of the authorities, any direction was given by the said higher Courts for framing of charge for a particular offence, before framing of charge by the Trial Court. Hence, I am of the considered view, with great respect, that neither of the authorities is applicable of the facts in the present case.
9. In view of the above discussion, the application U/s 216 Cr.PC filed by the complainant is dismissed.
10. Coming to the revision petition, at the outset, ld. Counsel for complainant raised objection regarding the CR NO. 135/17 5 Pradeep Singh vs. Geeta Singh maintainability of the present petition.
11. The revision petition has been filed u/s 397 r/w Section 401 CrPC. Section 401 CrPC pertains to the Hon'ble High Courts Powers of revision. Obviously, the said provision is not applicable to this Court. Section 397 CrPC is as follows:
"397. Calling for records to exercise powers of revision. - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be CR NO. 135/17 6 Pradeep Singh vs. Geeta Singh inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If any application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
(underlining by me)
12. The contention of ld. Counsel for complainant is that the summoning order is an interlocutory order only and hence, the present petition is specifically barred in view of the Section 397 (2) CrPC. In this regard, he relied upon the following para in judgment dated 25.08.2004 passed by Hon'ble Supreme Court in Appeal (Crl.) 91 of 2002, Adalat Prasad vs. Rooplal Jindal & Ors., as reported in Indian Kanoon, to contend that the only remedy the accused has, is under section 482 Cr.P.C.:-
CR NO. 135/17 7 Pradeep Singh vs. Geeta Singh "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 contravention of provision of Sections 200 & 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 Code 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."
(underlining by me)
13. On the other hand, counsel for accused submitted that the revision petition is maintainable against the summoning order. He relied upon the following authorities in support of his contentions:
a. Judgment dated 28.02.2012 passed by Hon'ble Supreme Court in Criminal Appeal No. 464/2012 (arising out of SLP (Crl.) no. 6908/2008), Om Kumar Dhankar vs. State of Haryana, as reported in lawpack.
CR NO. 135/17 8 Pradeep Singh vs. Geeta Singh b. Judgment dated 11.02.1999 passed by Hon'ble Supreme Court in Cr. A. 637/1995, Rajendra Kumar Sitaram Pande vs. Uttam, as reported in lawpack.
14. In Om Kumar Dhankar (supra) relied upon by the counsel for accused, it has been held as follows:
"8. The counsel for the appellant is not present. However, from the special leave petition, it transpires that two questions have been raised, namely, (one) whether Criminal Revision Petition against the order of summoning is maintainable, and (two) whether in the facts and circumstances of the present case, the sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is required.
9. Insofar as the first question is concerned, it is concluded by a later decision of this Court in the case of Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another (1999) 3 SCC 134. In Rajender Kumar Sitaram Pande case (supra) this Court considered earlier decisions of this Court in the cases of Madhu Limaye Vs. State of maharashtra, (1977) 4 SCC 551, V. C. Shukla Vs. State, 1980 Supp. SCC 92, Amar Nath vs. State of CR NO. 135/17 9 Pradeep Singh vs. Geeta Singh Haryana, (1977) 4 SCC 137 and K. M. Mathew Vs. State of Kerala, (1992) 1 SCC 217 and it was held as under:
"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 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..."
10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Cr.P.C. was available to the respondent no. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly."
(underlining by me)
15. This authority itself mentions the other authority i.e Rajendra Kumar Sitaram Pande (supra) relied upon by ld. Counsel for accused and specifically holds that revision petition against the summoning order is maintainable. CR NO. 135/17 10 Pradeep Singh vs. Geeta Singh
16. I have carefully gone through the authority Adalat Prasad (supra) relied upon by ld. Counsel for complainant.
17. The issue before Hon'ble Supreme Court in Adalat Prasad (supra) as mentioned in authority itself was as follows:
"As noticed above it is the correctness of the view expressed by this Court in Mathew's case which is now to be considered by us."
(underlining by me)
18. Hence, it is clear that the issue before the Hon'ble Supreme Court was whether the view expressed in K. M. Mathew vs. State of Kerala & Anr. 1992 (1) SCC 217 that it was open to the Court issuing summons, to recall the same on being satisfied that the issuance of summons was not in accordance with law.
19. Hon'ble Supreme Court in Adalat Prasad (supra) held as follows:
CR NO. 135/17 11 Pradeep Singh vs. Geeta Singh "Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, 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 stage. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling the erroneous order, amounting to one without jurisdiction, does not lay down the correct law."
(underlining by me)
20. It is clear that Hon'ble Supreme Court overruled the Mathew's case which held that Magistrate has the power to recall the summoning order passed by him.
21. I am of the considered view that authority nowhere lays downs that the revision petition against the summoning order is not maintainable.
CR NO. 135/17 12 Pradeep Singh vs. Geeta Singh
22. It is pertinent to mention here that in Adalat Prasad (supra) the Hon'ble Supreme Court specifically recorded in the authority as follows:
"In view of our above conclusion, it is not necessary for us to go into the question whether order issuing a process amounts to interim order or not."
(underlining by me)
23. It is clear from the above that there was no issue before the Hon'ble Supreme Court in Adalat Prasad (supra) whether the summoning order is an interlocutory order or not, much less that a revision petition against the summoning order is maintainable or not. Hence, with utmost respect at my command, I am of the considered view that Adalat Prasad (supra) is not applicable to the facts of the present case.
24. In view of the above discussion, it is held that present revision petition against the impugned order is maintainable.
CR NO. 135/17 13 Pradeep Singh vs. Geeta Singh
25. It was contended by the counsel for the accused that the cheque in question was issued by "Shree Krishna Vanaspati Industries Pvt. Ltd. (hereinafter "the company")". Hence, the company is drawer of the cheque. Initially, the company was not impleaded as an accused in the complaint. The case was filed initially against the present accused only. However, thereafter, the complainant realized her mistake and impleaded the company. However, the fact remains that no notice of the dishonour of the cheque was issued to the company. Hence, complaint against the company is not maintainable. Consequently, the same is also not maintainable against the present petitioner, who merely signed the cheque on behalf of the company. Ld. Counsel for the accused relied upon the following authorities in support of his contentions:
a. Judgment dated 16.09.2015 passed by Hon'ble Supreme Court in Cr.A No. 1001/2010 Jitender Vora Vs. Bhawana Y. Shah & Anr. as reported in Lawpack.
CR NO. 135/17 14 Pradeep Singh vs. Geeta Singh b. Judgment dated 06.05.2015 passed by Hon'ble Supreme Court on India in Criminal Appeal no. 1220 of 2009, Krishna Texports & Capital Markets Ltd. Vs. Ila A. Aggarwal, as reported in Indian Kanon.
c. Judgment dated 24.02.2015 passed by Hon'ble Supreme Court in Criminal Appeal no. 400/15 (arising out of SLP (Crl.) No. 6422/2012), Ajit Balse Vs. Capt. Ranga Karkere, as reported in Lawpack.
d. Common Judgment dated 09/05/2014 passed by Hon'ble High Court of Delhi in CRL. A no. 1432 of 2013 Vijay Power Generators Ltd. Vs. Sumit Seth. CRL A. No. 1433, 1434, 1435 & 1436 of 2013 Vijay Power Generators Ltd. Vs. Tarun Engineering Syndicate e. 2012(3), Civil Court Cases 121 (SC) Anita Hada vs. M/s Godfather Travels & Tours Pvt. Ltd.
f. Order dated 14.03.2017 passed by Sh. Pankaj Gupta, ASJ, North-West, Rohini, Delhi in Criminal Revision no. 19/17, Manisha Aggarwal Vs. State & Anr.
CR NO. 135/17 15 Pradeep Singh vs. Geeta Singh
26. It was contended by the counsel for the complainant that the present accused is the drawer of the cheque as the same has been signed by him. Even otherwise, the question who is the drawer of the cheque, can be decided only by way of evidence during trial. Counsel for the complainant relied upon the judgment dated 06.07.2015 passed by Hon'ble Supreme Court of India in Criminal Appeal No. 1472/09 Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi.
27. A perusal of the Trial Court Record reveals that initially, the complaint was filed against the present accused only. Para no. 4 of the complaint is as follows:-
"4. That the accused has issued a cheque bearing no. 000118 dated 20.03.2016 for sum of Rs.15,00,000/- drawn on Bank of India, Branch Wazirabad Road Branch, Pasonda U.P.-201005, filed in his own handwriting in his personal capacity. The said cheque has been drawn along with six other cheques towards part settlement of his liability for outstanding amount which he has taken as a friendly loan of Rs. 99,00,000/- which CR NO. 135/17 16 Pradeep Singh vs. Geeta Singh was needed in his business, from complainant and her husband."
(underlining by me)
28. This complaint was filed on 28.06.2016 before the concerned CMM who marked the same to the Trial Court for 11.07.2016. On 11.07.2016, an amended memo of parties was filed before the Trial Court which included the company. The order of the Trial Court regarding the amended memo of parties is as follows:
"The amended memo of parties has been filed today, which includes the company from which account the cheque in question has been drawn as accused no. 1.
Amended memo of parties is allowed and taken on record."
(underlining by me)
29. A perusal of the record shows that the name of the company is printed on the cheque. Cheque books are issued by the bank. Hence, there cannot be any doubt that the account number mentioned on the cheque pertains to the CR NO. 135/17 17 Pradeep Singh vs. Geeta Singh company which, being a private limited company, is legal entity separate from the present accused who signed the cheque.
30. I have found that in "2017 IX AD(S.C) 161 N Harihara Krishnan Vs. J. Thomas", it was held by Hon'ble Supreme Court of India as follows:-
"10.... but from the contents of the application from out of which the instant appeal arises and from the Xerox copy of the cheque, it appears that it was drawn on the account of DAKSHIN by somebody who claims to be director of DAKSHIN. It is the case of the respondent that the cheque was signed by the appellant...
11.... The cheque in question was drawn by private company (DAKSHIN) and allegedly signed by the appellant in his capacity as the Director of DAKSHIN.
20... The offence under Section 138 of THE ACT is capable of being committed only by the drawer by the cheque.
21... This Court in Aneeta Hada, had an occasion to examine the question "whether an authorized signatory of a company would be liable for CR NO. 135/17 18 Pradeep Singh vs. Geeta Singh prosecution under Section 138 of the Negotiable Instruments Act, 1881, (for brevity "the Act") without the company being arraigned as an accused" and held as follows:-
"59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself.....
Every person signing a cheque on behalf of a company on whose account a cheque is drawn does not become the drawer of the cheque. Such a signatory is only a person duly authorized to sign the cheque on behalf of the company/ drawer of the cheque on behalf of the company/ drawer of the cheque. If DAKSHIN/ drawer of the cheque is sought to be summoned for being tried for an offence under section 138 of the Act beyond the period of limitation prescribed under the Act, the appellant cannot be told in view of the law declared by this court in Aneeta Hada that he can make no grievance of that fact on the ground that CR NO. 135/17 19 Pradeep Singh vs. Geeta Singh DAKSHIN did not make any grievance of such summoning."
(underlining by me)
31. In view of the authority, it is clear that the company (and not the accused) is the drawer of the cheque in question.
32. As in the authority, in the present case also, it is clear on the face of the cheque that it had been drawn by the company on an account maintainable by it. Admittedly, no notice of dishonour of cheque has been given by the complainant to the company. Hence, the complaint against the company is not maintainable. Consequently, the complaint against the present petitioner/accused is also not maintainable in view of "Aneeta Hada Vs. Godfather Travels & Tours Private Limited (supra) relied upon by the counsel for accused.
33. Ld. Trial Court failed to appreciate this aspect of the matter that merely impleading the company, without CR NO. 135/17 20 Pradeep Singh vs. Geeta Singh issuing notice of the dishonour of cheque to it, would not make the complaint against the company and consequently, the present petitioner/accused maintainable and, thus, fell in error.
34. There cannot be any dispute about the propositions of law laid down in Mainuddin Abdul Sattar Sheikh (supra) relied upon by counsel for complainant, but, it is a settled law that each case is to be decided according to its own facts. In the said case, as noted in para no. 2 of the authority, the cheque was drawn by the accused in his individual capacity and not in the capacity of a Director of the company. This is not so in the present case, as noted above. The cheque in the present case has been issued by the company, (although, under the signature of the accused). Hence, it is clear that in the present case, the cheque has not been issued in the personal capacity of the present petitioner/ accused. Hence, with great respect, I am of the considered view that the authority is not applicable to the facts of the present case.
CR NO. 135/17 21 Pradeep Singh vs. Geeta Singh
35. In view of the above discussion, I am of the considered view that the impugned order against the accused cannot be sustained. The revision petition is, therefore, allowed. The impugned order in so far as it summoned the accused, is set aside. The complaint against the present petitioner/ accused is dismissed as not maintainable.
36. TCR with a copy of this judgment be returned back to the Ld. Trial Court.
37. Revision file be consigned to record room. (ANNOUNCED IN THE OPEN COURT TODAY I.E ON 13.09.2017) (RAKESH KUMAR SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 THC/ DELHI CR NO. 135/17 22 Pradeep Singh vs. Geeta Singh