Delhi High Court - Orders
Northern India Paint Colour And Varnish ... vs Sushil Chaudhary on 12 April, 2023
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2480/2023
NORTHERN INDIA PAINT COLOUR AND VARNISH CO. LLP
..... Petitioner
Through: Mr. Kotla Harshavardhan, Ms. Mansi
Sood and Mr. Divyank Yadav,
Advocates.
versus
SUSHIL CHAUDHARY ..... Respondent
Through: Mr. Viraj Datar, Senior Advocate
with Mr. Atul T.N., Advocate.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 12.04.2023 CRL.M.A. No. 9436/2023, CRL.M.A.No. 9437/2023 (Exemptions) Exemptions granted, subject to just exceptions. Let requisite compliances be made within 01 week. The applications stand disposed of.
CRL.M.C.2480/2023 & CRL.M.A. No.9435/2023 (ex-parte ad interim stay) By way of the present petition under section 482 of the Code of Criminal Procedure 1973 ('Cr.P.C.), the petitioner impugns order dated 15.02.2023 made by the learned Additional Sessions Judge ('ASJ') allowing the criminal revision petition bearing CRL.REV. No. 201/2022, thereby setting-aside order dated 09.01.2020 issued by Signature Not Verified Digitally Signed By:NEERAJ Signing Date:15.04.2023 CRL.M.C. 2480/2023 Page 1 of 3 15:32:49 the learned Metropolitan Magistrate in criminal complaint bearing CC No. 380/2020 under section 138 of the Negotiable Instruments Act, 1881 ('NI Act') by which the respondent had been summonsed. By the impugned order the learned ASJ has remanded the matter to the learned Magistrate to conduct an inquiry under section 202 Cr.P.C.
2. Mr. Kotla Harshavardhan, learned counsel for the petitioner submits that though it is not disputed that an inquiry under section 202 Cr.P.C. is mandatory when an accused resides at a place beyond an area where the Magistrate exercises jurisdiction, however, the summoning order in the present case shows that requisite enquiry had been conducted by the learned Magistrate, who had applied his mind before issuing summons.
3. It is further submitted, that especially the direction contained in para 7 of the impugned order, whereby the learned ASJ has directed the learned Magistrate to ascertain whether all the ingredients of the offence punishable under section 138 NI Act, including whether the cheque in question was issued in discharge of a 'legally enforceable debt', are satisfied or not, and to properly appreciate the Share Sale and Purchase Agreement before issuing summons, are unwarranted in view of the presumption contained in section 139 of the NI Act and the burden of proof on the respondent under section 118 of the NI Act.
4. Upon a prima-facie view of the matter, issue notice.
5. Mr. Atul T.N., learned counsel appears on behalf of the respondent on advance copy; accepts notice; and seeks time to file reply.
Signature Not Verified Digitally Signed By:NEERAJ Signing Date:15.04.2023 CRL.M.C. 2480/2023 Page 2 of 3 15:32:496. Let reply be filed within 06 weeks; rejoinder thereto, if any, be filed within 04 weeks thereafter; with copies to the opposing counsel.
7. Re-notify on 27th July 2023.
8. Since in the opinion of this court the directions contained inter-alia in para 7 of the impugned order do require a more detailed consideration, in the meantime, further proceedings before the learned Magistrate in the criminal complaint bearing CC No. 380/2020 shall remain stayed, till the next date before this court.
ANUP JAIRAM BHAMBHANI, J APRIL 12, 2023/uj Signature Not Verified Digitally Signed By:NEERAJ Signing Date:15.04.2023 CRL.M.C. 2480/2023 Page 3 of 3 15:32:49