Delhi District Court
Santosh Kumar Tiwari vs M/S. Academy Of Technology & Management on 26 July, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Revision No. 94/13
Unique case ID No. 02404R0145152013
1. Santosh Kumar Tiwari
S/o sh. Markandey Tiwari
2. Ms. Sunita Devi
W/o sh. Chander Pal Singh
3. Ms. Raj Kumari
W/o Sh. Santosh Kumar Tiwari
All R/o A35, Gautam Nagar,
New Delhi.
......................Revisionists
Versus
M/s. Academy of Technology & Management
12,2nd Floor, Central Market,
PhaseI, Deep Market,
Ashok Vihar, Delhi,
Through its Secretary Sanjeev Gupta
Date of institution of the case: 24/05/2013
Arguments heard on: 15/07/2013
Date of reservation of order: 15/07/2013
Date of Decision:26/07/2013
ORDER
This is a criminal revision petition filed u/s 397 of Cr.P.C. against order of summoning dated 21/01/2013 passed by the learned Trial Court.
In brief, in a complaint case No. 58/1, PS Ashok Vihar, U/s. 138 of Negotiable Instruments Act, titled as Academy of Technology and Management Vs. CR No. 94/13 1/4 Santosh Kumar Tiwari & Ors., vide the impugned order dated 21/01/2013, the learned Trial Court ordered to issue summons to accused No. 1 to 3 i.e. the present revisionists U/s. 138 of Negotiable Instruments Act for 05/03/2013.
The impugned order has been challenged on various grounds. It is contended that learned Metropolitan Magistrate should not have passed the impugned order in view of the fact that complainant did not furnish on record any documentary proof showing that the present revisionists were served with notice U/s. 138 of N.I. Act. It is further contended that the present revisionists have drawn the cheques from the individual accounts and as such they are independent drawers of the cheques in question, hence, clubbing of independent drawers in one complaint is an unheard phenomenon and thus being prohibitory, the order of summoning requires to be recalled, which the learned MM has overlooked. It is further contended that complainant has not placed any copy of the MOU on record. It is further contended that impugned order be set aside.
I have heard Ld Counsel for revisionists, learned counsel for the respondent and have gone through the TCR.
I have gone through the TCR. Learned counsel for the revisionists has argued the matter only on two counts, firstly, false report has been obtained regarding service report of legal demand notice, secondly, there are five cheques, for which, the complaint case has been filed, which have been issued by Sunita Devi, Raj Kumari and Santosh Kumar Tiwari, so, five cheques issued by three different persons cannot be clubbed together and separate cases were required to be filed.
According to the documents placed on TCR, accused Santosh Kumar Tiwari has been shown resident of A35, Gautam Nagar, New Delhi. Similarly, Sunita Devi and Raj Kumari have also been shown resident of the same address. Notice was sent through courier and it was reported that none was residing there. In CR No. 94/13 2/4 the revision, all these accused persons are shown resident of A35, Gautam Nagar, New Delhi. It is contended by learned counsel for the revisionists that if the notices would have been served upon the accused persons, then they would be in a position to reply the same and obtaining a false report on the notices sent through courier showing the accused persons not residing at the address given has snatched a valuable right of the accused persons.
Learned counsel for the revisionists has further contended that not only this, but on 05/03/2013, the learned Trial Court issued bailable warrants of the accused persons only on the statement of learned counsel for the complainant that accused persons were having knowledge of the case and they were deliberately avoiding the process of Court, whereas on the summons, it was reported that accused persons have left the address given, so, only on the submissions of learned counsel for the complainant, bailable warrants should not have been issued. The procedure of service through affixation upon the accused persons should have been adopted.
On the other hand, learned counsel for the respondent has contended that accused persons were not residing at the address given, so, notices issued were received back with the remarks "left without address", but learned counsel for the complainant/respondent has failed to explain satisfactorily as to how he made statement before the Court on 05/03/13 to the extent that accused persons were having knowledge of the case and they were deliberately avoiding the process of the Court. Acting on the statement of learned counsel for the complainant, the learned Tria Court issued bailable warrants of accused persons for the next date, which was improper.
According to Section 218 of Cr.P.C., separate charges are required to frame for distinct offences and according to Section 219 of Cr.P.C., three offences of same kind may be charged together, so, both these Sections relates to the charges CR No. 94/13 3/4 and not the person. At the most, three offences of same kind can be charged together, if committed within a year. The accused persons can be charged together and tried with the help of Section 120B or 34 of IPC only. The present case is U/s. 138 of Negotiable Instruments Act. Learned counsel for the complainant/respondent has contended that all these five cheques were issued by the accused persons under a memo of understanding, so, they can be charged and tried together. Copy of the MOU has not been placed on record before the learned Trial Court nor in my view, the same is permissible as per law unless the accused persons are charged with offence U/s. 120B or 34 of IPC.
In view of above discussion, as the cheques have been issued by different persons, so, they cannot be charged together or tried together U/s. 138 of Negotiable Instruments Act. Accordingly, the summoning order dated 21/01/2013 and consequently, order dated 05/03/2013 being improper and illegal are set aside. Learned Trial Court is directed to hear the complainant afresh on the point of summoning.
TCR be sent back with the copy of the order.
Complainant/respondent is directed to appear before the court concerned on 29/07/2013.
Revision file be consigned to record room.
Announced in Open Court on
dated 26th of July, 2013 (Virender Kumar Goel)
Additional Sessions Judge
Fast Track Court /Rohini : Delhi
CR No. 94/13 4/4