Delhi District Court
M/S Berger Paints India Ltd vs State on 17 May, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 204769 of 2016
CNR No.DLSE01-005695-2016
IN THE MATTER OF:
M/s Berger Paints India Ltd,
(British Paints Division),
Through Authorized Representative having
its Head Office at 19, DDA Complex,
Kailash Colony Extn., Zamrudpur,
New Delhi-110048
. . . . Revisionist
VERSUS
1. State,
2. M/s P K Enterprises,
Having its office at
Dharamdas Gate, Chirayakote, Mau,
UP-276129
. . . . Respondents
Instituted on : 23.08.2016
Reserved on : Not Reserved
Pronounced on : 17.05.2022
Crl Rev. No.204769 of 2016 M/s Berger Paint India Ltd Vs. State & Anr Page No. 1 of 4
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.17
15:02:08 +0530
JUDGMENT
1. Vide instant revision, revisionist takes exception to the order dated 29.06.2016 passed by Ld. Metropolitan Magistrate (NI Act-
03), South East District, New Delhi in case bearing CC No. 4128/2015 titled as 'M/s Berger Paints India Ltd Vs M/s P K Enterprises', U/s 138 of the Negotiable Instrument Act, whereby the complaint of the revisionist/complainant was dismissed for non-prosecution by the Ld Trial Court.
2. Brief facts may be taken note of: A Criminal complaint under section 138 NI Act came to be filed by revisionist/complainant against respondent no.2/accused in the court of concerned Ld MM with the allegations that respondent no.2 issued a cheque for an amount of Rs.93,167/- in discharge of his legal liabilities. However, same got dishonoured on presentation with the remarks 'exceeds arrangement' vide cheque return memo dated 01.09.2015 and despite issuance of demand notice dated 16.09.2015, no payment was made. Thereafter, the criminal complaint was filed against the respondent no.2 for offence under section 138 NI Act.
3. Trial Court record transpires that after filing of complaint, matter was posted for consideration / PSE (pre-summoning evidence) for 25.01.2016. On said date, Ld counsel for complainant appeared however, AR of complainant was not available and therefore, matter was adjourned for appearance of his appearance as well as for pre- summoning evidence / consideration for 19.04.2016. Record further transpires that on next date of hearing, none appeared on behalf of Crl Rev. No.204769 of 2016 M/s Berger Paint India Ltd Vs. State & Anr Page No. 2 of 4 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.17 15:02:17 +0530 complainant and therefore matter was adjourned for appearance of complainant / consideration. On next date of hearing i.e 29.06.2016, proxy counsel for the complainant appeared and adjournment was sought as AR for the complainant was not available. However, Ld Trial Court had dismissed the complaint of complainant for non prosecution due to non appearance of AR of complainant. Hence, present revision.
4. The case of the complainant (revisionist herein) was at the stage of pre summoning evidence as per Chapter XV of the Code. Chapter XV provides for complaints to Magistrates. Offence under Section 138 of the NI Act is summons trial case ( Chapter XX)/summary trial case (Chapter XXI). The case was to be dealt with the Chapter XV of the Code because same was fixed at the stage of pre summoning evidence. Chapter XV does not provide for dismissal of complaint for non prosecution. Complaint can be dismissed at the stage of pre summoning evidence (Chapter XV) under Section 203 of the Code if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the magistrate is of the opinion that there is no sufficient ground for proceeding. Hence, complaint can be dismissed under Section 203 of the Code after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 of the Code. Before dismissing the complaint, Ld Trial Court has to form the opinion that there is no sufficient ground for proceeding. In the present case, proxy counsel for the complainant had appeared and he sought adjournment because of the non availability of the AR, when Crl Rev. No.204769 of 2016 M/s Berger Paint India Ltd Vs. State & Anr Page No. 3 of 4 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.17 15:02:57 +0530 the impugned order was passed. In my considered view, in the facts and circumstances of the present case and in the interest of justice, the revisionist should be given one more opportunity to lead presummoning evidence and thereafter Ld. Trial Court shall form an opinion as to whether there are sufficient grounds for proceeding against respondent or not.
5. In view of the above discussion, impugned order dated 29.06.2016 stands set aside. Instant petition stands allowed subject to cost of Rs.2,000/ to be deposited by revisionist/complainant with Lawyers Welfare Fund, Saket court, New Delhi within three days from today and the receipt thereof be placed before Ld Trial Court. Revisionist shall appear before learned trial Court on 21.05.2022 at 02.00 pm.
6. Copy of judgment alongwith TCR be sent back to the Ld Trial Court.
7. Copy of the judgment be also sent to Honorary Secretary, Saket Bar Association for necessary information.
8. Revision file be consigned to record room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.17 15:03:06 +0530 Announced in the open (ANUJ AGRAWAL) court on 17th May 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No.204769 of 2016 M/s Berger Paint India Ltd Vs. State & Anr Page No. 4 of 4