Delhi District Court
Hari Ram Tripathi S/O Sh Radhika Prasad ... vs Sanjeev Chadha on 1 March, 2024
IN THE COURT OF MS AMBIKA SINGH, ASJ-02/ WEST
DISTRICT, TIS HAZARI COURTS, NEW DELHI
Criminal Revision No. 98/2023
CNR No. DLWT01001648-2023
Sh. Hari Ram Tripathi
R/o 183, 183, 3rd Floor,
Pocket-9, Sector-24
Rohini, Delhi-110085
.....Revisionist
Versus
Sanjeev Chadha
S/o Late Raj Kumar Chadha
R/o BE-330, Gali No. 3, Hari Nagar,
New Delhi-110064
.....Respondent
Date of institution of the cases : 22.02.23
Date when the cases reserved for order : 01.03.24
Date of announcement of order : 01.03.24
JUDGMENT
01.03.24
1. This criminal revision petition assails the summoning order dated 19.09.2022 (hereinafter to be referred as the impugned order) and the proceedings emanating out of the same passed by the Ld. MM, N.I. Act (Digital Court) in case CC No. 1687-2022. A prayer has been made to set aside the said impugned order for summoning.
2. The Ld. Trial court vide order dated 19.09.2022 has passed the summoning order. Briefly stated that the complainant, a CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 1 of 12 businessman, at the request of the accused that he was in urgent need of money for business purposes, gave a friendly loan of Rs. 11 Lac in the year 2011-2012 and Rs. 12 Lac in the year 2013-2014 to the accused at interest from the sale proceeds of property and shops sold by him and out of above amount, a sum of Rs. Five Lac was returned by the accused on 14.10.2015 through RTGS. Further, accused had issued eight cheque amounting to Rs. 18 Lac in the name of the complainant and requested him to fill the date if he wanted to encash them after prior intimation. The accused expressed inability to repay due to which the complainant got compelled and to meet his requirement, out of the eight cheques available with him, put only four cheques of Rs.2,50,000/- each, issued by the accused for encashment in his bank account but the same got returned with the memo "Payment Stopped by the Drawer". Out of above cheque bearing no. 180869 to 180872 drawn on PNB, Mayapuri, New Delhi branch were issued by the accused to complainant with the promise that the complainant would be at liberty to get the cheque encashed after putting date on them in exigency. After due intimation to the accused, the complainant deposited the above cheque in his bank account with Canara Bank, Maya Puri, New Delhi branch on 16-04-2022 but the same were returned on 18.04.2022 as unpaid by the Drawee bank with the memo "Payment Stopped by Drawer". The said cheque were issued to discharge the liability of the accused accrued in respect of a loan advanced and returning of the same as unpaid for reason "Payment Stopped by Drawer" is a criminal act on the part of the accused under relevant provisions of law. After the Dishonoring of the aforesaid cheque, the complainant sent a legal notice dated 21.04.2022 to the accused by way of Speed Post at the aforesaid addresses of the accused and therein demanded the cheque amount from the accused by giving fifteen days time to him from the date of receipt of the said CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 2 of 12 legal notice. The accused did not pay the amount pertaining to the aforesaid cheque as demanded by the complainant through the said legal notice within fifteen days time given to the accused by way of said notice notwithstanding the said legal notice having been received by the accused on 25/04/2022. Thereafter, the present revision was filed and was taken up on 22.02.23.
3. Having aggrieved by the impugned order of summoning by the Ld. Trial Court, the revisionist is preferring the present revision for quashing the complaint and the relevant proceedings emanating out of the summoning order dated 19.09.2022 on the ground that firstly, the impugned summoning order of the Ld. Trial Court is illegal, contrary to facts and bad in law. Secondly, the respondent has filed false and frivolous case. Thirdly, that the respondent has concealed material fact pertaining to the complaint dated 20.03.2022 filed by the son of revisionist against him and had further concealed the fact pertaining to the sending of the legal notice dated 05.04.2022 by the revisionist through his counsel as well as reply dated 16.04.2022. Fourthly, that the impugned order dated 19.09.2022 being taken by the respondent by playing fraud upon the Ld. Trial Court and withholding of material facts above mentioned. Fifthly, that three offences of same kind within a year may be charged together and there has to be one trial for any number of cases not exceeding three. Each cheque having its own distinct cause of action and cheque being four one complain for four cheques could not have been filed and cognizance could not have been taken. Sixthly it is a well settled principle of law that if any judgment or order is obtained by playing fraud then that order is nullity and non est in the eyes of law as laid down by the Hon'ble Supreme Court of India and also that if the complainant puts date on the cheque without drawer's consent then the instrument renders to be void as laid down by the Hon'ble High Court CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 3 of 12 of Bombay and also that in the cases of money lending business without licence the provisions of u/s 138 NI Act are not attracted as laid down in by the Hon'ble High Court of Bombay.
5. Notice of the Revision petition was issued to the respondents on which the respondents entered their appearance. TCR was also summoned.
6. On the other hand, Ld. Counsel for respondent/complainant has argued the matter and filed a reply to the present revision stating that this petition is nothing but an attempt to prolong the litigation so as to deviate the attention of the Ld. Counsel from the liability payable to him and deserves to be dismissed. The respondent in his reply to the notice of the revisionist dated 05.04.2022 requested him to sit across the table to settle the issues but he never came forward and the same compelled the respondent to exercise his legal rights and also that the cheque in question were undated and that no documents were signed by the revisionist and also if the loan has been repaid why the revisionist refrained from demanding his signed cheque book from the respondent or alleged documents which are being now demanded as an afterthought. Also, the revisionist admitted the issuance of cheque in his own handwriting and also their bouncing on presentation. Further the respondent has stated the grounds taken by the revisionist to be wrong and denied.
7. I have heard the arguments of both the parties and perused the record carefully. I have also gone through the authorities as placed on record by both the parties.
8. In Subramanium Sethuraman vs State Of Maharashtra & Anr. on 17.09.2004, Hon'ble Supreme Court of India has held as under:-
"In Mathew's case this Court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused to enter appearance and satisfy the CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 4 of 12 court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required. In Adalat Prasad's case, this court considered the said view of the court in K.M.Mathew's case and held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasad's case held :
"Therefore, we are of the opinion that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling and issuance order amounting to one without jurisdiction, does not laid down the correct law".
From the above, it is clear that the larger Bench of this Court in Adalat Prasad's case did not accept the correctness of the law laid down by this Court in K.M.Mathew's case. Therefore, reliance on K.M.Mathew's case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasad's case requires reconsideration be accepted. 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. As observed by us in Adalat Prasad's case 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 CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 5 of 12 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".
14. The Hon'ble Supreme Court of India further clarified the situation in so moto writ petition In Re Expeditious Trial Of Cases Under Section 138 OF N.I. Act 1881.
"In K. M. Mathew v. State of Kerala & Anr.8, this Court dealt with the power of the Magistrate under Chapter XX of the Code after the accused enters appearance in response to the summons issued under Section 204 of the Code. It was held that the accused can plead before the Magistrate that the process against him ought not to have been issued and the Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. This Court was of the opinion that there is no requirement of a specific provision for the Magistrate to drop the proceedings and as the order issuing the process is an interim order and not a judgment, it can be varied or recalled. The observation in the case of K. M. Mathew (supra) that no specific provision of law is required for recalling an erroneous order of issue of process was held to be contrary to the scheme of the Code in Adalat Prasad v. Rooplal Jindal and Others9. It was observed therein that the order taking cognizance can only be subject matter of a proceeding under Section 482 of the Code as subordinate criminal courts have no inherent power. There is also no power of review conferred on the Trial Courts by the Code. As there is no specific provision for recalling an erroneous order by the Trial Court, the judgment in the case of K. M. Mathew (supra) was held to be not laying down correct law. The question whether a person can seek discharge in a summons case was considered by this Court in Subramanium Sethuraman v. State of Maharashtra & Anr.10. The law laid down in Adalat Prasad (supra) was reiterated.
18. It was contended by learned Amici Curiae that a holistic reading of Sections 251 and 258 of the Code, along with Section 143 of the Act, should be considered to confer a power of review or recall of the issuance of process by the Trial Court in relation to complaints filed under Section 138 of the Act. He referred to a judgment of this Court in Meters and Instruments Private Limited and Another v. Kanchan CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 6 of 12 Mehta11 which reads as follows:
"While it is true that in Subramanium Sethuraman v. State of Maharashtra this Court observed that once the plea of the accused is recorded under Section 252 CrPC, the procedure contemplated under Chapter XX CrPC has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to the 2002 Amendment. The statutory scheme post-2002 Amendment as considered in Mandvi Coop. Bank and J.V. Baharuni has brought about a change in law and it needs to be recognized. After the 2002 Amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 CrPC which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of CrPC are applicable "so far as may be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible i.e. with such deviation as may be necessary for speedy trial in the context."
19. In Meters and Instruments (supra), this Court was of the opinion that Section 143 of the Act confers implied power on the Magistrate to discharge the accused, if the complainant is compensated to the satisfaction of the court. On that analogy, it was held that apart from compounding by the consent of the parties, the Trial Court has the jurisdiction to pass appropriate orders under Section 143 in exercise of its inherent power. Reliance was placed by this Court on Section 258 of the Code to empower the Trial Courts to pass suitable orders.
CR No. 98/2023Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 7 of 12
20. Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply "as far as may be" to trials of complaints under Section 138. Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore, Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. The judgment of this Court in Meters and Instruments (supra) in so far as it conferred power on the Trial Court to discharge an accused is not good law. Support taken from the words "as far as may be" in Section 143 of the Act is inappropriate. The words "as far as may be" in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation12. The Judge's duty is to interpret and apply the law, not to change it to meet the Judge's idea of what justice requires13. The court cannot add words to a statute or read words into it which are not there.
21. A close scrutiny of the judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) would show that they do not warrant any reconsideration. The Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. As held 12 J. Frankfurter, "Of Law and Men: Papers and Addresses of Felix Frankfurter".
14 Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323 above, this Court, in its anxiety to cut down delays in the disposal of complaints under Section 138, has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation. However, amendment to the Act empowering the Trial Court to reconsider/recall summons may be considered on the recommendation of the Committee constituted by this Court which shall look into this aspect as CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 8 of 12 well...
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.
15. Further, the present court have to keep in mind that revisional jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is manifest error of law and consequently there has been a flagrant miscarriage of justice. In Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
17. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
CR No. 98/2023Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 9 of 12 "14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible.
The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
18. Applying the aforesaid principals of law on the facts and circumstances of the case, it is crystal clear that the Ld. Trial Court has passed the summoning order dated 19.03.2022 correctly and there is no infirmity in the said order. In the case u/s 138 NI Act, the summary trial procedure has been adopted and in such kind of cases, the trial court has no power to review or recall the order of the issue of the summons to the accused persons or discharge the accused persons. In the summary trial cases, there is no power with the court to review the order or recall the order. Accused persons can not seek discharge in a summary triable case, it has been specifically held in Subramanium Sethuraman's case as discussed in preceding paragraphs. The contension of the revisionist that the cheque has been presented without the consent is a matter of trial and it can be proved by the revisionist at the appropriate stage during trial.
At this stage, the present court can only see that whether the order is illegal or it has led to miscarriage of justice or has been passed without any jurisdiction. As I have discussed earlier, it was held in Adalat Prasad Case's that order of taking cognizance, issuance CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 10 of 12 of summons and the discharge of accused can only be subject matter of a proceedings under section 482 of the code as the district courts do not have the inherent powers. The revisionists/accused persons cannot be discharged only on hearing argument on the stage of serving upon notice. Similarly, the summoning order cannot be recalled by this court and no proceeding against the accused can be dropped at this stage. As discussed, the law of land on this aspect is quite clear. The Hon'ble Supreme Court of India in Subramanium Sethuraman vs. State of Maharashtra & Ors (2004) 13 SCC 324 has categorically ruled that "issuance of process under Section 204 is a preliminary step in trial contemplated in Chapter 20 (Section 251 to 259) Cr.P.C and is, therefore, an interlocutory order, the same cannot be reviewed, reconsidered or recalled by the Magistrate. Only remedy available to an aggrieved accused is the extraordinary remedy under Section 482 and not by way of application to recall the summons or to seek discharge. The later not to be contemplated in the trial of a summon case. (Adalat Prasad's case (2004) 7 SCC 338). Once plea of accused is recorded under Section 252, the procedure contemplated under Chapter 20 has to be followed which is to take the trial to its logical conclusion. The Hon'ble Supreme Court of India in Re: Expeditious Trial of Cases under Section 138 of the NI Act suo moto writ petition (Crl. No. 2/2020) decided on April 16, 2021 has also categorically ruled that the judgements of the court in Adalat Prasad (supra) and Subramanium (supra) had interpreted law correctly and reiterated that there is no inherent power of the trial courts to review or recall or to reviews the order of summoning in the accused. The Hon'ble High Court of Delhi in Court on its own motion vs. State judgment delivered on 20.04.2022 has categorically ruled that 'the Court of a Magistrate do not have the power to discharge the accused upon his appearance in the court in a summoned trial case based upon CR No. 98/2023 Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 11 of 12 complaint in general and particularly in a case under Section 138 of the NI Act, once cognizance has already been taken and process under Section 204 issued.
19. The present Court is of the opinion that the Ld. Trial Court has rightly taken into consideration the law on the issue and has applied its judicial mind while passing the impugned order, taking into consideration, the material on record, while coming to the conclusion of issuance of summons against all the accused persons. The present court has the highest regard to the authorities filed but they do not apply to the facts and circumstances of the case.
20. It cannot be said at this stage that the conclusion arrived at by the Ld. Trial Court is unreasonable or unjustified calling for the interference by the present Court in exercise of revisional jurisdiction. I do not find any infirmity or flaw in the impugned order passed by the Trial Court. Accordingly, the revision petition is dismissed.
21. Revision is accordingly disposed of as dismissed. Nothing said herein shall tantamount to have effect on the merits of the case. Trial Court record be sent back alongwith the copy of this judgment. After necessary formalities, revision file be consigned to Record Room.
Announced in the open court (Ambika Singh)
on 01.03.24 ASJ-02/THC, West/Delhi
01.03.24
CR No. 98/2023
Hari Ram Tirpathi Vs. Sanjeev Chadha Page No 12 of 12