Delhi District Court
Sh. Vineet Arora S/O Sh. R.S. Arora vs State Of Nct Of Delhi on 29 April, 2017
1
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
Cr. Revision No. 57500/16
1. Sh. Vineet Arora S/o Sh. R.S. Arora
2. Smt. Renu Arora w/o Sh. Vineet Arora
Both R/o A94, Ashok Vihar, PhaseI,
Delhi110052 .....Revisionists
V/s
1. State of NCT of Delhi
2. Sh. Vipin Bhatia S/o Sh. K.L. Bhatia
R/o HU74, Vishakha Enclave, Pitampura, Delhi
.......Respondents
Order/Judgment reserved on : 29.04.2017 Order/Judgment delivered on: 29.04.2017 ORDER/ JUDGMENT 29.04.2017
1. This Criminal Revision Petition is filed by the petitioners namely Vineet Arora and Renu Arora against their summoning orders dated 16.02.2016 passed by Ld. MM, North, Rohini, Delhi, summoning the petitioners u/s 138 of Negotiable Instruments Act, 1881 in complaint case No. 1306/1/15 filed by respondent no. 2 namely Vipin Bhatia.
Vide impugned orders dated 16.02.2016, Ld. MM after perusing the complaint, the records i.e. the cheque in question and on concluding the pre summoning evidence observing that primafacie the cheques in question have CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 1 2 been dishonoured due to insufficient funds in the bank account of the accused and the accused has failed to pay the cheque amount despite service of statutory notice and that it was satisfied that a primafacie case u/s 138 of NI Act has been made out against the accused and the Ld. MM had taken the cognizance of the offence and directed to issue summons to accused on filing of PF and RC returnable for 02.04.2016.
2. As per facts deposed by the respondent No. 2 in his presummoning evidence vide his affidavit Ex.CW1/B the respondent no. 2 (complainant therein) advanced a sum of Rs.80 Lakhs as a friendly loan on the basis of four cheques Ex. CW1/1 to Ex. CW1/4, all of Rs.20 Lakhs each, all dated 14.09.2015 drawn on Punjab National Bank, Lawrence Road, Delhi issued by one of the accused persons on behalf of the firm M/s Shree Ram Sales Corporation, the accused No. 1, for meeting their daily business requirements at an interest @ of 18 % per annum on the assurance that they would repay the same on or before 14.09.2015 otherwise such cheques would be encashed on presentation. Also that on 14.09.2015 the cheques were presented to the bankers and were returned with the remarks of insufficient funds vide memo Ex. CW1/5 (colly) (4 returning memos) and thus a legal notice dated 12.10.2015 Ex. CW1/6 was served upon them but was responded with a false and frivolous reply and hence the complaint against five accused persons namely the firm M/s Shree Ram Sales Corporation, respondent no. 1 and four persons namely Vineet, Renu, Manoj Gupta and Brij, all partners of such firm. Two of them namely Vineet, Renu are petitioners before this court assailing the orders of summoning against them on CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 2 3 the ground that neither they are partners to respondent no. 1 nor they are signatories of the cheques in question.
Being aggrieved by and dissatisfied with the impugned orders dated 16.02.2016, the petitioners filed the present criminal revision petition no. 57500/16 assigned to this court.
Sh. Joginder Sukhija, Ld. Counsel appearing for the petitioners submits that he is confining his revision petition and challenging the summoning orders only against petitioner no. 1 Sh. Vineet Arora and petitioner Smt. Renu Arora who were summoned alongwith other accused persons five in number in the impugned orders.
That the cheques in question were signed only by one Manoj Kumar Gupta, the accused no. 4 named in the complaint acting on behalf of firm i.e. accused no. 1 and complainant has not proved anywhere that the firm namely M/s Shree Ram Sales Corporation was a registered partnership firm or that petitioners Sh. Vineet Arora and Smt.Renu Arora were partners of that firm. Further that it is only averred that these two partners have represented themselves as partners of such firm thus it was submitted that the summoning orders against them are bad in law as the petitioners cannot be held vicariously liable for the acts of respondent no. 4, signatory of the cheques in question. As regards of the maintainability of the revision petition is concerned it is submitted that the summoning orders are not purely interlocutory orders and challenged to such summoning orders before the court of Sessions Judge i.e. before this court are maintainable.
CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 3 43. Ld. Counsel for the appellant has relied upon the following case laws:
a) Om Kr. Dhankar Vs. State of Haryana & others (2012) 11 SCC 252 ( SC),
b) Rajender Kumar Sitaram Pande & others Vs. Uttam & others, 1999(38) ACC 438 (SC) SC,
c) Jag Narain Vs. State of UP, decided on 06052009 in CR No. 5610 by the Hon'ble Allahabad High Court, ....(on the point of maintainability of the revision petition)
d) Desh Deepak Sharma Vs. State of Delhi, 2008 (147) DLT 293 DHC,
e) V P Gupta Vs. National Small Scale Ind. Corporation 2004 (3) JCC 238 (NI) DHC,
f) Swastik Polyvinyls Vs. B.M. Gupta 2014 (207) DLT 131, DHC,
g) K.N. Shamsuddin Vs. State, 2009(5) AD (Delhi) 942, DHC &
h) Sudeep Jain Vs. ECE Industries 2013 (201) DLT 461 DHC.
...... (On the point of vicarious liability of the petitioners for the acts of Sh. Manoj Kumar Gupta, accused no. 4 in the complaint).
4. The counsel for the complainant has countered the arguments questioning that the revision petition against the summoning orders is not maintainable in view of the law settled in Adalat Prasad vs. Rooplal Jindal (2004 (50) ACC 924) as against summoning orders, no revision is available before the Sessions Court.
On merits it is submitted that petitioners were partners and were responsible of the activities of the firm i.e. accused no. 1 and thus are liable vicariously as accused no. 4 was acting on behalf of the firm.
5. At the outset, about maintainability of Revision Petition against the summoning orders of the petitioners namely Sh. Vineet Arora and Smt. Renu Arora, on having given my thoughtful consideration to the rival submissions made by the parties' counsel, it is observed that as per the settled legal position, it is now settled by the Hon'ble Higher Courts and Hon'ble Apex Court, in a catena of judgments, that an order issuing process for summoning of the accused persons in a complainant case, to face the trial, is not an interlocutory order and a revision CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 4 5 against such orders is not barred by subsection (2) of Section 397 Cr.P.C. So far as the contentions of the respondents based on the opinion of the Hon'ble Apex Court in Adalat Prasad vs. Rooplal Jindal (2004 (50) ACC 924) and Subramanium Sethuraman vs. State of Maharashtra (2005 (51) ACC
684) that the only remedy available to the accused against summoning order is to move the High Court in the proceeding under section 482 Cr.P.C., is concerned, it is observed that the matter of maintainability of Revision against summoning order was not specifically raised before the Hon'ble Apex Court in those cases and such issues have been discussed in Omkar Dhankar Vs. State of Haryana and others (2012) 11 SCC 252 ( SC) by the Hon'ble Apex Court, holding that, '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'.
6. Further, the matter of maintainability of Revision against summoning order has also been considered by the Hon'ble Apex Court in case titled as Rajendra Kumar Sita Ram Pandey & others vs. Uttam & another, cited as 1999 (38) ACC 438 (SC), in which the matter of bar of Revision under the provisions of subsection (2) of section 397 Cr.P.C. against summoning order was considered and it was held that, 'Order issuing process for summoning the accused to face the trial is not an interlocutory order and therefore the bar under subsection (2) of section 397 would not apply to such order'.
CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 5 67. Therefore, in view of above discussed observations and settled legal position, the present Revision against summoning order would not be barred by subsection (2) of section 397 Cr.P.C. and is legally maintainable.
8. Now, come to the merits of the case, the basic contention of the revisionists impugning the summoning order qua the petitioners is that the complainant/respondents was under the legal obligation for making the petitioners vicariously liable for the dishonourment of the cheques in question to prove either that the cheques were issued by them as signatory or that the signatory has acted on their behalf and under their authority or that they were the partners of the respondent No. 1 firm on whose behalf the cheques were signed. It is submitted that the complainant/respondent No. 2 Sh. Vipin Bhatia has failed to prove through cogent evidence on record that M/s Shree Ram Sales Corporation was a partnership firm or that the petitioners namely Sh. Vineet Arora and Smt. Renu Arora were the partners of such firm.
Also that the complainant/respondent No. 2 has failed to established the basic ingredient that the petitioners were incharge and responsible for the conduct of day to day business of the company namely M/s Shree Ram Sales Corporation, on whose behalf such cheques were issued by one Sh. Manoj Kumar Gupta, the signatory of the cheques.
9. On these aspects, I lay my hands to the affidavit inevidence Ex. CW1/B, of Sh. Vipin Bhatia, the complainant/respondent No. 2, adduced before Ld. Trial Court, in the complaint case No. 1306/15.
CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 6 7In para 2 of such affidavit, it is deposed that petitioners, who were made accused No. 2 & 3 therein, were partners of the accused No. 1 firm (M/s Shree Ram Sales Corporation) who were incharge of and responsible for the conduct of day to day affairs of the firm.
In para 4 of such affidavit, it is deposed that the petitioners approached and represented themselves as partners .
10. With such ocular evidence by way of affidavit Ex. CW1/B, the documentary evidence i.e. the original cheques Ex. CW1/1 to CW1/4, the return memos Ex. CW1/5 colly., legal notice and postal receipts Ex. CW1/6 to CW1/9, were attached but there was no documentary evidence to support the depositions that the petitioners herein were partners of the firm (M/s Shree Ram Sales Corporation) on whose behalf Sh. Manoj Kumar Gupta, the accused No. 4 has signed the cheques.
Neither any documents of registration of partnership firm nor any constitution of such firm to show that petitioners were partners were produced. In this electronic era wherein all the partnership firms, if registered are on the website of the registrar of firms and in this era of right to information wherein anybody can obtain the information regarding any business, it cannot be assumed that such document to show the status of the petitioners was not possible for the complainant/respondent No. 2, who has dared to lend Rs. 80 lacs at one go to a firm which he claims to be a partnership firm and when the complainant was in dealing with the firm and with the petitioners as its partners for about more than 10 years as claimed by the complainant/respondent No. 2.
CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 7 8The complainant/respondent has stated in his depositions that he was extending friendly loans/business loans to the petitioners and their firm for last more than 10 years, as and when required, but no where it has been shown that the complainant/respondent No. 2 was in the business of money lending as an entity in the form of NonFinancial Corporation (NFC) or a financial entity to lend such a huge amount to the firms or to the individuals.
11. In any case for fixing the vicariously liability for the acts of one Sh. Manoj Kumar Gupta, who was the signatory of the cheques in question, as per the settled legal proposition as settled in Desh Deepak Sharma Vs. State of Delhi, (2008) (147) DLT 293, the complainant has to show that the petitioners were either signatory of the cheques or were the partners for calling of their liability for the acts of the signatory towards the cheques in question.
12. Also it is a settled proposition of law as settled in K.N. Shamsuddin Vs. State, 2009(5) AD (Delhi) 942, DHC & Sudeep Jain Vs. ECE Industries, 2013 (201) DLT 461 DHC, that for issuance of summons, Ld. Magistrate cannot issue the same mechanically without ascertaining whether the petitioners had actual roles in the transaction and were not only pestors. It was specifically discussed in case titled as V. P. Gupta Vs. National Small Scale Ind. Corporation 2004 (3) JCC 238 (NI) DHC, that for holding the petitioners responsible, it is the duty of the complainant to prove that they were responsible for the conduct of the business of the company.
CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 8 913. In Swastik Polyvinyls Vs. B.M. Gupta, 2014 (207) DLT 131, DHC, case it was made clear that only for reproducing wording of section 141 (1) of the Act that they were responsible for the business of the firm would not serve the purpose until and unless it is duly proved that the petitioners were incharge and were responsible for the conduct of the day to day business of the company and it is incumbent upon the complainant to specifically spell out the role of each and every such accused, if he is not the managing director or the owner of the firm or the signatory to the cheque, to explain how such persons were incharge and responsible for the conduct of day to day business of the firm.
14. In the instant case, the complainant/respondent No. 2 has only made bald statements that the petitioners were partners of the firm M/s Shree Ram Sales Corporation on whose behalf cheques were issued and that they were responsible for the conduct of the business of such firm but nothing could be shown on record in the evidence of the complainant adduced for summoning of the process that the firm was a partnership firm or that the petitioners were partners or that they were having specific roles in the firm to hold them responsible for the cheques issued on behalf of the firm.
15. Thus, in the abovenoted circumstance, the summoning orders qua the petitioners were found bad in law as no case is made out for issuance of summons to the petitioner namely Sh. Vineet Arora and Smt. Renu Arora and as sufficient material was not there to hold primafacie that a case is made out u/s 138 of NI Act, against them, therefore, the impugned orders dated 16.02.2016 CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 9 10 regarding issuance of the processes is hereby setaside qua petitioners.
16. Thus, the revision petition stands allowed and the impugned orders dated 16.02.2016 is hereby setaside qua petitioners.
17. The Trial Court record be sent back to the concerned court with the copy of this order and the revision file be consigned to record room.
Announced in the open Court (Dr. Archana Sinha)
on 29.04.2017 Addl. Sessions Judge02,North
Rohini Courts, Delhi
29.04.2017
CR No. 57500/16 Sh. Vineet Arora Vs. State & Others Page No. 10