Delhi District Court
R/O 6/102 vs Sh. Rakesh Jain on 8 December, 2010
:1:
IN THE COURT OF SHRI S. K. SARVARIA, ADDL SESSIONS
JUDGE, IN CHARGE, DISTRICT COURTS ROHINI, DELHI
Criminal Revision No. 17/2010
In the matter of :
Shri Rakesh Gola
S/o Sh. M.S. Gola
R/o 6/102, Vishwas Nagar,
Shahdara, Delhi 110032. ..... Revisionist/ Accused
VERSUS
Sh. Rakesh Jain,
S/o Late Sh. V.C. Jain,
C/o Ms. Savitri Devi,
R/o B5/171, Sector11,
Rohini, Delhi - 110085. ...... Respondent/Complainant
: ORDER :
This revision petition is filed by the petitioner/accused against the order dated 20/7/2010 passed by learned trial court by which Rakesh Gola vs. Rakesh Jain :2: rejecting the prayer of the petitioner for discharge of the petitioner/accused, the learned Trial Court gave Notice under Section 251 CrPC to the petitioner/accused for the alleged offence under Section 138 of the Negotiable Instruments Act on account of dishonoured bank cheque issued by the petitioner/accused to the respondent/complainant.
The contention of learned counsel for the petitioner/accused is that the complaint does not speak about issuance of any legal demand notice which is prerequisite for filing complaint under section 138 of the Negotiable Instruments Act. Therefore, the Notice under Section 251 CrPC should not have been issued and instead the petitioner/accused should have been discharged by the learned Trial Court. Reliance is placed upon 'M/S Shakti Travel and Tours versus State of Bihar and another' 2000 (4) Crimes 150 (SC) and 'Sarla Jain and others versus Central Bank of India 2007 (4) LRC to 91 (Delhi)'.
The learned counsel for the respondent/complainant on the other hand, has contended that learned Trial Court passed a legally correct order on 20/7/2010 so the revision petition is not maintainable. It is argued that in the presummoning evidence before learned Trial Court the respondent/complainant has proved the requisite notice though it was omitted to pleaded by mistake. Therefore, the petition is liable to be Rakesh Gola vs. Rakesh Jain :3: dismissed.
I have heard the learned counsel for the parties and have gone through the trial court record, relevant provisions of law and the authorities produced on behalf of the petitioner.
In Shakti Travel and Tour's case (supra) it was held that when in the complaint it was not mentioned that demand notice was served on the accused, the complaint under Section 138 of the Negotiable Instruments Act is not maintainable. But the law has stepped forward as interpretation in this regard seems to have been changed by the Hon'ble Supreme Court in its subsequent decision in 'C.C. Alavi Haji v. Palapetty Muhammed & anr.' III (2007) BC 533 (SC). 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 Rakesh Gola vs. Rakesh Jain :4: 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. Any other interpretation of the proviso would defeat the very object of the legislation. 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.{Pl. See C.C. Alavi Haji v. Palapetty Muhammed & anr III (2007) BC 533 (SC)}. Therefore, Shakti Travel and Tour's case (supra) does not help the petitioner/accused. The Sarla Jain's case (supra) is entirely on different set of facts and is not applicable to the present revision petition.
The Trial Court record shows that in the presummoning evidence the respondent/complainant has proved the demand notice dated 05.10.2006 Ex.CW1/5. Therefore, it is not a case in which the respondent/complainant has not relied upon the requisite demand notice prior to filing of the complaint in question before learned Trial Court. Further, the petitioner/accused has contended that instead of giving of Notice under Section 251 CrPC the learned Trial Court should have Rakesh Gola vs. Rakesh Jain :5: discharged him. But such a course is impermissible in SummonsCase like the present one which entails Summons Trial. In John Thomas Vs. Dr. K. Jagadeesan AIR 2001 SC 2651, the Hon'ble Supreme Court has made the following observations :
" 8. Summons cases are generally of two categories. Those instituted upon complaints an those instituted otherwise than upon complaints. The latter category would include cases based on police reports. Section 258 of the Code is intended to cover those cases belonging to one category alone i.e. "
summons cases instituted otherwise than upon complaints. " The segment separated at the last part of the section by the words " and in any other case " is only a subcategory or division consisting of "
summons cases other than upon complaints. " That subcategory is not intended to cover all summons cases other than those instituted on police report. In fact, S.258 vivisects only " summons cases instituted otherwise that on complaints " into two divisions. One division consists of cases in which no evidence of material witness was recorded. The section permits the Court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of Court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all.
9. The upshot of the above is that S. 258 of the Code Rakesh Gola vs. Rakesh Jain :6: has application to cases instituted upon complaints. The present is a case which was instituted on complaint. Hence the endeavour made by the accused to find help from S.258 of the Code is of no avail. "
In Subramanium Sethuraman v State of Maharashtra AIR 2004 SC 4711, it was observed as follows:
"16. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion."
Relying upon Subramanium Sethuraman's case (supra) our Hon'ble High Court in Asia Metal Corporation (HUF) Versus State and another 130 ( 2006) DLT 545:
Rakesh Gola vs. Rakesh Jain :7: "The issuance of summons for attendance marks the end of the presummoning stage and the case then has to be dealt with under Chapter XX which deals with trial of summons cases by magistrate. At this stage, the Magistrate is not required to further apply his mind as to whether the case has to be proceeded with or not against the accused/summoned persons. All that is required under Section 251 of the Code is that the substance of the accusation is to be stated and the accused is to be asked whether he pleads guilty or has any defence to make and it is also not necessary to frame a formal charge. None of the provisions of Chapter XX speak of any possibility of discharge except under Section 258 which does not apply to the present case. The Supreme Court's decision in the case of Subramanium Sethuraman (supra) is quite clear on this aspect and has categorically held that the case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. What has happened in the present case is that after summons were issued, at the stage of proceedings under Section 251 of the Code, the learned Metropolitan Magistrate has discharged all the accused except Yogesh Gupta. There is no provision of discharge at the stage of Section 251 of the Code and, therefore, this is clearly contrary to the provisions of the Code as also to the law as declared by the Supreme Court in the case of Subramanium Sethuraman (supra). This is an error which needs to be corrected and, therefore, these revision petitions would be maintainable."
Rakesh Gola vs. Rakesh Jain :8: Therefore, the discharge of an accused in a Summons Trial case is based on private complaint is impermissible. The learned Trial Court has also taken note of the authorities including Subramanium Sethuraman's case (supra) and rightly rejected the contention of the counsel for petitioner/accused for discharge of the accused and has by a legally correct action gave notice under Section 251 CrPC for the alleged offence under Section 138 of Negotiable Instruments Act to the petitioner/accused.
In view of the above discussion, there is no illegality or material irregularity in the impugned order which may warrant interference in revision. The revision petition is, therefore, dismissed. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The parties are directed to appear before Learned Trial Court on 14.12.2010, the date already fixed. The revision file be consigned to the record room.
Announced in the open (S.K. SARVARIA ) Court on 08.12.2010 ADDL. SESSIONS JUDGE & INCHARGE ROHINI COURTSVIII, DELHI Rakesh Gola vs. Rakesh Jain :9: Criminal Revision No. 17/2010 Rakesh Gola vs. Rakesh Jain 08.12.2010.
Present: None Vide separate order of even date, the revision petition is dismissed. The trial court record be returned along with the copy of this order.
The parties are directed to appear before Learned Trial Court on 14.12.2010, the date already fixed. The revision file be consigned to the record room.
(S.K. SARVARIA ) ADDL. SESSIONS JUDGE & INCHARGE ROHINI COURTSVIII, DELHI Rakesh Gola vs. Rakesh Jain