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Rajeev Malhotra vs Manoj Malhotra on 3 August, 2022

Author: Anu Malhotra

Bench: Anu Malhotra

                      $~55
                      *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                      +      CRL.M.C. 3605/2022 & CRL.M.A. 15101-15102/2022
                             RAJEEV MALHOTRA                                   ..... Petitioner
                                         Through:            Mr. Deepak Kohli, Advocate.
                                                versus
                             MANOJ MALHOTRA                                      ..... Respondent
                                         Through:

                             CORAM:
                             HON'BLE MS. JUSTICE ANU MALHOTRA
                                           ORDER

% 03.08.2022 CRL.M.A. 15102/2022 Exemption allowed subject to all just exceptions. The application is disposed of accordingly. CRL.M.C. 3605/2022 & CRL.M.A. 15101/2022 The petitioner vide the present petition assails the impugned summoning order dated 18.11.2015 of the Court of the learned MM, East, KKD Courts in CC No.50235/2016 submitting to the effect that the petitioner had not been served, in terms of the NI Act, 1881, with the legal notice.

Reliance is sought to be placed on behalf of the petitioner on the verdict of this Court in HDFC Bank Limited vs. Amit Kumar Singh 2009(4) Crimes 772 and the verdict of the Hon‟ble Supreme Court in Dalmia Cement Ltd. vs. Galaxy Traders decided on 19.01.2001 in Crl.A. 957/2000 reported as AIR 2001 SC 676.

Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.08.2022 17:17:22 This file is digitally signed by PS to HMJ ANU MALHOTRA.

Reliance is also placed on behalf of the petitioner on observations in Harman Electronics (P) Ltd. & Ors. vs. National Panasonic India Ltd. reported as 2009 (1) ACR 800 SC.

The Court has put a query to the learned counsel for the petitioner in view of the verdict of the Hon‟ble Supreme Court in C.C. Alavi Haji vs. Palapetty Muhammed and Ors. decided on 18.05.2007 reported as (2007) 6 SCC 555, the observations in which vide para 16 thereof read to the effect:-

"16. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation, of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."

qua which the learned counsel for the petitioner submits that there is a mention therein in the verdict in HDFC Bank Limited (Supra).

Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.08.2022 17:17:22 This file is digitally signed by PS to HMJ ANU MALHOTRA.

Without any observations on the merits or demerits of the petition, in view of the substantial question of law involved in the matter, it is considered appropriate to issue notice of the petition along with the notice of the accompanying application CRL.M.A. 15101/2022 filed by the petitioner to the respondent on taking of steps by the petitioner.

The learned Trial Court is however directed not to pronounce any judgment till the pendency of the present petition.

Copy of this order be sent to the learned Trial Court. The matter be re-notified for 26.09.2022.

ANU MALHOTRA, J AUGUST 3, 2022 ha CRL.M.C. 3605/2022 Page 3 of 3 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:06.08.2022 17:17:22 This file is digitally signed by PS to HMJ ANU MALHOTRA.