Delhi District Court
Saroj Jindal vs Ameer Ahmad on 23 July, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI. CR No. 104/2022 PS : Bhajan Pura U/s 138 of NI Act Saroj Jindal W/o. Ram Avatar R/o. H. No. D-87, New Multan Nagar Paschim Vihar, New Delhi ...Revisionist Versus Ameer Ahmad S/o Sh.Rashid Ahmad R/o H. No. 321, Street No. 3, Old Mustafabad, Delhi -110094 ...Respondent AND CR No. 105/2022 PS : Bhajan Pura U/s 138 of NI Act Saroj Jindal W/o. Ram Avatar R/o. H. No. D-87, New Multan Nagar Paschim Vihar, New Delhi ...Revisionist Versus Shahnoor S/o Sh. Khalil Ahmed R/o H. No. A-1, Indira Vihar, Main Brijpuri Road, Delhi -110094 ...Respondent CR No.104/2022 Saroj Jindal Vs. Ameer Ahmad CR No.105/2022 Saroj Jindal Vs. Shahnoor 1/11 Date of assignment : 30.05.2022 Date of Arguments : 23.07.2022 Date of Pronouncement : 23.07.2022 JUDGMENT:
1. Vide this judgment I shall disposed of two Revision Petitions preferred by the common Revisionist against two impugned orders dated 26.03.2022 passed in two separate Criminal Complaints filed by the Complainant therein against the Respondents / Revisionist, which are pending under adjudication.
2. Ld. Counsel for Revisionist in both Revisions has submitted that Revisionist has challenged the orders of Ld. Trial Court dated 26.03.2022 passed on two different applications u/s 258 Cr. PC in two Complaints and both applications have been dismissed. It is further submitted that Ld. Trial Court has failed to understand the grievances of the Revisionist, as she was initially partner of a Partnership Firm along-with co-accused, but she has left that Partnership Firm way back and has also filed a Civil Suit for Declaration thereby seeking relief that her co-partner has misused her signatures on partnership documents including some cheques. It is further submitted that Revisionist was / is not the signatory of the cheque in dispute and even she was also not responsible for day-to-day affairs of the Partnership Firm due to both complaints are not maintainable. It is further submitted that both Criminal Complaints were not maintainable against this Revisionist, but still Ld. Trial Court has failed to understand the factual as well as legal aspects of the complaints and mechanically issued CR No.104/2022 Saroj Jindal Vs. Ameer Ahmad CR No.105/2022 Saroj Jindal Vs. Shahnoor 2/11 the summons against the Revisionist. It is further submitted that Revisionist had challenged that summoning order before the Hon'ble High Court of Delhi, but said petition was dismissed with liberty to Revisionist raise all such pleas/ defenses raised in that petition before the Ld. Trial Court, due to Revisionist had filed both applications u/s 258 of CrPC in both complaints, but Ld. Trial Court has dismissed both applications by impugned orders. It is further submitted that Revisionist / accused has no concerned with co-accused who has signed the cheques in dispute due to proceedings pending before the Ld. Trial Court against this Revisionist are liable to be dismissed/ stopped and Revisionist is entitled for discharged. In support of his arguments, Ld. Counsel for Revisionist has relied upon following judgments as under:
1. Jatinder Pal Singh vs. Statcon Power Controls Ltd. Decided on 08.03.2022
2. AIR 2015 SC 675 titled Pooja Ravinder Devidasani vs. State of Maharastra & Anr.
3. AIR 2012 SC 31 titled Anita Malhotra vs. Apparel Export Promotion Council & Anr.
4. AIR 2012 SC 37 titled Takdir Samsuddin Sheikh v. State of Gujrat & Anr.
5. AIR 2010 SC (Supp) 569 titled National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal & Anr.
6. 162 (2009) DLT 23 titled Vijay Polymers Pvt. Ltd. vs. Vinnay Aggarwal
7. Harshendra Kumar D. Vs. Rebatilata Koley etc. decided on 08.02.2011
3. On the other hand, Ld. Counsel for Respondents in both Revisions has strongly opposed these submissions on the ground that the Revisionist in both Revisions has already raised this issue before the Hon'ble High Court of Delhi, but said petition was dismissed as withdrawn with liberty to raise those grounds/ defenses before the Ld. Trial Court, but those CR No.104/2022 Saroj Jindal Vs. Ameer Ahmad CR No.105/2022 Saroj Jindal Vs. Shahnoor 3/11 grounds are again not maintainable. It is further submitted that impugned orders dated 26.03.2022 passed on two applications u/s 258 Cr. PC in both complaints do not bear any illegality or infirmity, as the stoppage of proceedings in a Criminal Complaint is not permissible and section 258 CrPC is not applicable in this case and plea taken by the Revisionist is not sustainable. It is further submitted that impugned orders are not bearing any illegality or infirmity and both Revisions are liable to be dismissed.
4. I have heard the arguments and perused the record. In both the Revision Petitions a common question of law is involved due to both have been taken up together. The common question involved in both Revisions is, as to whether Ld. MM is competent to close / stop proceedings u/s 258 CrPC in a Criminal Complaint u/s 138 of NI Act? Ld. MM has dismissed two separate applications u/s 258 CrPC of the Revisionist with observations as under:
However, the issue involved is already clarified by the Hon'ble Apex Court in its Suo Motu writ petition (Crl) No.2 of 2020 in its order dated 16.04.2021 wherein, it has been observed by the Hon'ble Apex Court that the law laid down in Adalat Prasad Vs. Roop Lal Jindal and Ors. (2004) 7 SCC 338 and Subramanium Sethuraman Vs. State of MAharasthra and Anr. (2004) 13 SCC 324 have interpreted the law correctly and there is no inherent power of trial court to review or recall the issue of summons.
Further it has been observed that section 258 of CrPC is not applicable to complaints u/s 138 of NI Act and finding to the contrary in Meters and Instruments Pvt Ltd. and Anr. Vs. Kanchan Mehra (2018) 1 SCC 560 do not lay down the correct law.
In view of the aforesaid law laid down by the Five Judge Bench of the Hon'ble Apex Court in its Suo Motu writ petition (Crl) No.2 of 2020 in its order dated 16.04.2021, application of the accused Saroj u/s 258 CrPC is not maintainable and stands dismissed.
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5. By the above said similar orders passed in both cases, both applications have been dismissed. Revisionist has challenged both orders by two separate Revision Petitions. However, before adjudicating both Revisions, it is necessary to go through the relevant Section 258 of CrPC as under:
Section- 258. Power to stop proceedings in certain cases.--In any summons case instituted otherwise than upon complaint, a Magistrate of the First Class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witness has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
6. This section 258 is part and parcel of Chapter XX of CrPC which prescribes a procedure to deal with summons cases. Sections 251 to Section 259 have laid down a procedure of trial for summons cases defined u/s 2 (w) of CrPC. Section 258 deals with the stoppage of proceedings in summons cases. However, this section has categorically used words "instituted otherwise than upon complaint", which suggests that summons cases instituted upon police reports are covered by this section, but the cases instituted upon Criminal Complaints are not covered by this section. Section u/s 258 of NI Act came into interpretation before the Hon'ble Apex Court in case titled John Thomas v. K. Jagadeesan (Dr), (2001) 6 SCC 30 and the relevant observation is as under:
7. The appellant questioned the aforesaid view of the learned Single Judge on the strength of Section 258 of the Code of Criminal Procedure (for short "the Code"). It must be pointed out that the offence under Section 500 IPC is triable as a summons case in accordance with the provisions contained in Chapter XX of the Code. Sections 251 to 257 of that Chapter CR No.104/2022 Saroj Jindal Vs. Ameer Ahmad CR No.105/2022 Saroj Jindal Vs. Shahnoor 5/11 deal with the steps to be adopted from the commencement up to culmination of the proceedings in summons cases. One of the normal rules in summons cases is that once trial has started, it should reach its normal culmination. But Section 258 is included in that Chapter in the form of an exception to the aforesaid normal progress chart of the trial in summons cases. It is useful to extract the section here:
"258. Power to stop proceedings in certain cases.--In any summons case instituted otherwise than upon complaint, a Magistrate of the First Class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witness has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge."
8. Summons cases are generally of two categories: those instituted upon complaints and 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 sub-category or division consisting of "summons cases instituted otherwise than upon complaints". That sub-category is not intended to cover all summons cases other than those instituted on police report. In fact, Section 258 vivisects only "summons cases instituted otherwise than on complaints" into two divisions. One division consists of cases in which no evidence of a 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 the 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 Section 258 of the Code has no application to cases instituted upon complaints. The present is a case which was instituted on a complaint. Hence the endeavour made by the accused to find help from Section 258 of the Code is of no avail.
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7. This section again came into interpretation before in case titled Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324 as under:
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 contemplate 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 that 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.
17. As observed by us in Adalat Prasad case [(2004) 7 SCC 338 : 2004 SCC (Cri) 1927 : (2004) 7 Scale 137] the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case.
18. The learned counsel for the appellant then sought leave of this Court to approach the High Court by way of Section 482 petition questioning the issuance of process by the Magistrate. The same was very strongly opposed by the learned counsel for the respondents who contended that the complaint in this case was filed as far back as 24-12-1996 and though there was a direction earlier for an early disposal of the trial, the appellant and the other accused have successfully managed to keep the trial in abeyance by initiating one proceeding after another even up to this Court. He submitted that both this Court as well as the High Court in the earlier proceedings have left the question of validity of statutory notice to be considered at the trial but the accused persons including the appellant herein are time and again raising the same issue with a view to delay the trial, hence no such permission as sought for by the appellant should be granted.
19. We see that this Court while dismissing earlier SLP as withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it CR No.104/2022 Saroj Jindal Vs. Ameer Ahmad CR No.105/2022 Saroj Jindal Vs. Shahnoor 7/11 may, we cannot prevent an accused person from taking recourse to a remedy which is available in law. In Adalat Prasad case [(2004) 7 SCC 338 : 2004 SCC (Cri) 1927 : (2004) 7 Scale 137] we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law. However, taking into consideration the history of this case, we have no doubt that the court concerned entertaining the application will also take into consideration the objections i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of applications and petitions filed by the accused.
8. However, the aforesaid legal proposition was reversed by the Hon'ble Apex Court in case titled Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560 and the relevant observation is as under:
19. In view of the above, we hold that where the cheque amount with interest and cost as assessed by the court is paid by a specified date, the court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 CrPC. As already observed, normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) CrPC with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the accused and other circumstances.
9. But, the abovesaid legal proposition laid down by the case titled Meters and Instruments (P) Ltd (supra) was again reconsidered by the Apex Court in case titled In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, 2021 SCC OnLine SC 325 and it is observed as under:
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24. The upshot of the above discussion leads us to the following conclusions:
1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.
2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.
3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.
4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.
5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.
7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law.
To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.
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8) All other points, which have been raised by the Amicus Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.
In view of the above said case law, it stands proved that Section 258 of CrPC has no application on the cases instituted upon the complaints and proceedings of a Criminal Complaint cannot be stopped under this section.
10. So far as the case law relied upon by the Ld. Counsel for the Revisionist are concerned, case titled Pooja Ravinder Devidasani vs. State of Maharashtra & Anr. was pertaining to a civil liability of Company of which Directors were impleaded in a Complaint u/s 138 of NI Act and the Hon'ble Apex Court opined that the cheque in question issued by the company by virtue of Letter of Guarantee would not make any liability u/s 138/141 of NI Act. Another case titled Mrs. Anita Malhotra v. Apparel Export Promotion Council & Anr., AIR 2012 SC 31 was pertaining to the criminal liability of non-executive director of company which is again not applicable to the facts of this case, as interpretation of section 258 CrPC was not involved in that case. Similarly, AIR 2010 SC (Supp.) 569 titled National Small Industries Corporation Ltd. v. Harmeet Singh Paintal & Anr. was dealing with vicarious liability of a director who ceased to be a director of a company on the day of issuance of the cheque, which is again not an issue involved in this case. The judgment titled Vijay Polymers Pvt. Ltd. & Anr. Vs. Vinnay Aggarwal, 162 (2009 ) DLT 23 was dealing with an issue of time barred debt and limitation of time-barred recovery, which is again not an CR No.104/2022 Saroj Jindal Vs. Ameer Ahmad CR No.105/2022 Saroj Jindal Vs. Shahnoor 10/11 issue in this case. The other judgment titled Harshendra Kumar D. Rebatilata Koley etc., Criminal Appeal No. 377/2011 and Jatinder Pal Singh Vs. M/s Statcon Power Controls Ltd. dated 08.03.2022 were dealing with position of a director regarding a Criminal Complaint case u/s 138 of NI Act. As such, all judgments relied upon by Ld. Counsel for revisionist are not dealing with facts as well as legal proposition raised before this court. Revisionist has been served a notice u/s 251 Cr. PC and her defense has been recorded. She moved before the Hon'ble High Court of Delhi against the summoning order, but the said petition u/s 482 Cr. PC has been dismissed. She again sought similar relief by moving application u/s 258 CrPC, but the Ld. Trial Court rightly dismissed with observation that section 258 of CrPC is not applicable in this case.
11. Keeping in view the facts and circumstances of the case, I am of the considered opinion that both Revisions against the impugned orders are not maintainable, hence dismissed.
12. Copy of the judgements be sent to Ld. Trial Court with TCR of both cases.
13. Copy of both judgments also be given dasti to both parties.
14. Both revision petitions be consigned to Record Room.
Digitally signed by DEVENDRA KUMAR DEVENDRA Date: KUMAR 2022.07.23 16:28:14 Announced in open court (Devender Kumar) +0530 today on 23.07.2022 Additional Sessions Judge-02 (NE): Karkardooma Courts, Delhi. CR No.104/2022 Saroj Jindal Vs. Ameer Ahmad CR No.105/2022 Saroj Jindal Vs. Shahnoor 11/11