Delhi District Court
Arun Bhatia S/O Late Sh.Jn Bhatia vs State (Through Nct Of Delhi) on 9 August, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
Crl. Revision No.11/2010
Arun Bhatia s/o Late Sh.JN Bhatia
17, Abdul Fazal road
New Delhi
....Revisionist/accused
Vs.
1. State (Through NCT of Delhi)
2. M/s Rama Vision Ltd.
Through A/R Sh RK Sehgal
Company Secretary
303304 Ratan Jyoti
18 Rajendra Place, New Delhi
...... Respondent
ORDER
The present revision petition u/s 397/399/401 Cr.PC has been preferred for setting aside the order dated 06.05.2009 passed by Sh Jitender Mishra, Ld.MM whereby the revisionist/accused has been summoned to face trial.
2. Briefly stated the facts of the case for giving rise to this present revision are that the revisionist was the Managing Director of a company Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.1 of 10 named A.S. Impex which had business dealing with respondent no.2. During the course of dealings certain cheques were issued on behalf of the company as security against future supply of goods but the cheques were returned unpaid. In May 2001 Respondent no.2 filed a complaint u/s 138 NI Act against the company, petitioner and other Directors which is pending adjudication in the court of Ms. Veena Rani, MM and revisionist is facing trial. After a lapse of more than two years the respondent no.2 has filed a criminal complaint before Ld. ACMM, New Delhi alongwith an application u/s 156(3) Cr.PC identical to the complaint u/s 138 NI Act. In pursuance to the order of the Ld. MM, FIR no. 463/2003 PS Connaught Place was registered on the basis of said complaint. Revisionist moved an application u/s 438 Cr.PC and during the pendency of application a sum of Rs.6.00 lac was paid to the complainant. After investigation the investigation agency filed a cancellation report in the court on the ground that identical case u/s 138 NI Act was pending adjudication and hence no case of cheating was made out. On filing the protest petition by the complainant/R2, Ld. Trial court ordered for further investigation. The investigation agency filed another cancellation report wherein earlier conclusion was reiterated that only a civil dispute was made out and in view of the pendency of complaint case u/s 138 NI act no case was made out against the petitioner/revisionist. Upon filing of such report, Ld. MM had taken the cognizance and summoned the petitioner/revisionist upon merely a statement of the counsel of the Respondent no.2 that since a lot Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.2 of 10 of delay is being caused, the complainant wishes to drop the proceedings against other accused arrayed in the complaint and only accused no.1 and 2 being company and the revisionist be summoned to face trial. The Ld. Magistrate upon hearing on protest petition passed the order dated 6.5.09 and summoned the revisionist. Feeling aggrieved by the said order dated 6.5.09, the revisionist has preferred this present revision petitioner.
3. Notice to the revision was issued to the State and Respondent no.2 and trial court record was summoned. After service of notice counsel on behalf of R2 Sh Om Prakash Sekhawat Adv alongwith AR Sh RK Sehgal of the company have appeared and TCR was received. Reply to the revision petition has also been filed by the counsel for R2. Thereafter, I have heard the arguments on this revision petition.
4. During the course of arguments it has been submitted by the Ld. Counsel for the revisionist that the order passed by the Ld. MM is illegal, improper and incorrect and is in total disregard to the procedure provided in the Cr.PC. The Ld. MM did not even record any evidence of the complainant before passing the impugned order. It has been stated that the Ld.MM has not applied his judicial mind in summoning the revisionist and he has stated that in various landmark pronouncements by the Hon'ble Supreme court it has been observed that summoning of the accused is not an idol formality. The order passed by the Ld.MM is a non speaking order and Ld. MM has failed to appreciate that the police had twice filed the Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.3 of 10 cancellation report after thorough investigation. The impugned order suffers from glaring defects as the order does not disclose the offences for which the Ld. Trial court was pleased to take the cognizance. The order has been passed without going into the facts and circumstances of the case as there is not a single whisper regarding the facts of the case or the basis of the satisfaction of Ld. Trial court to summon the accused/revisionist to face the criminal trial. Ld. Counsel has relied upon the Judgment of Hon'ble Apex Court titled G Sagar Suri & Anrs. Vs. State of UP and Anr. It has further been stated that bare reading of the complaints and the status report filed by police clearly shows that transaction between the complainant and accused/revisionist was commercial/civil in nature hence no criminal offence is made out against the revisionist and the case u/s 138 NI Act on the same cause of action is pending adjudication. It has further been argued that the Ld. MM has failed to appreciate that basic ingredients of cheating were missing in the alleged transaction between the complainant and revisionist which was only a business transaction and the proceedings were clearly an abuse of process of law and were vexatious in nature aimed to harass the revisionist. The order passed by the Ld.MM is not a reasoned order. It has been prayed that the order dated 6.5.09 may kindly be set aside.
5. Ld. Counsel for R2 has stated that the petition filed by the revisionist is barred by time. NO documentary evidence has been placed Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.4 of 10 that revisionist came to know about passing of order in the month of August 2010. It has been submitted that the relief prayed in the petition can only be entertained by the Hon'ble High court and he relied upon a Judgment Adalat Vs. Roop Lal Jindal & Ors., 2004(77) DRJ 440 (SC). The police after investigation filed the charge sheet and kept the name of other accused persons in column no.2. Respondent no.2 has never filed any protest petition qua the petitioner and the same was only filed against the other named accused persons for placing their names in column no.2 of charge sheet despite the ample evidence collected by the police. It has been stated the Ld.trial court has rightly summoned the revisionist and it is settled law of land that the complainant can have the multiple litigation against the accused persons in case of bouncing of cheque issued by the accused persons in favour of the complainant and complainant can file separate criminal proceedings u/s 138 NIC Act and U/s 420 IPC and Ld. Trial court as per Law, passed an order u/s 156(3) Cr.PC for investigation of the matter and police after thorough investigation filed the charge sheet for summoning him. The revisionist has not put any appearance before the Ld. Trial court and NBW were issued. The revisionist under the garb of this revision petition has indirectly taken the bail which is contrary to law. It has further been submitted that section 401 Cr.PC is appllicable in case the revision petition is filed before the Hon'ble High court and not before the Sessions Court. The petitioners always used to issued PDC cheques against the supply of the goods. The contents of both the Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.5 of 10 complaints u/s 138 NI Act and u/s 406/420422/120B are not identical. It has further been argued that the police has not filed the cancellation report against the petitioner. The direction was with regard to further investigation in the case and not qua the petitioner.The protest petitions were filed by R2 against the other named accused persons as mentioned in the complaint and charge sheet and not against the petitioner. It has further been stated that nowhere in the charge sheet has been mentioned that the dispute is of civil nature and not of criminal nature. Ld. Trial court did not take the cognizance on the offence and summon the petitioner only on the statement of the counsel of the respondent no.2 rather the order for summoning the petitioner was passed on the basis of investigation carried out by the police and the material collected during the course of investigation qua the petitioner. There is no legal requirement in law to the effect that before passing the order u/s 156(3) Cr.PC the Ld.MM must record the statement/evidence of the complainant. The order is a seasoned and reasoned order. The basic ingredients of cheating are not missing in the complaint filed by R2. The offence u/s 420 IPC, many times is committed in commercial transaction also. It has further been argued that the accused persons filed a Crl. Misc. Case 3679/2003 on the registration of FIR on the complaint filed by R2. The Crl. Misc. case was heard by Hon'ble Justice R.S Sodhi. During the course, a specific plea was taken by the counsel for the petitioner that no offence u/s 406/420/422/120B IPC has been committed. A query was Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.6 of 10 raised by the Hon'ble Mr. Justice R.S Sodhi that even if the past conduct of the petitioners is kept in side apart , even then the offence is made out on the basis of the agreement dated 21.8.2001, the terms of which were duly agreed but were not honoured by the petitioner that the agreement was signed by the petitioner herein and the respondent no.2 for leaving the claim of the interest accrued till then by R2 and relinquishing the claim of the interest accrued till then, is a wrongful loss caused to R2 by the petitioner and wrongful gain to themselves and when the petitioner understood that their petition is going to be dismissed, they sought permission of the court to withdraw their petition and it was dismissed as withdrawn vide order dated 17.02.2004. The revisionist was informed soon just after passing the summoning order by the Ld.MM, by R2 way back in May,2009 and not in August 2010. It has been prayed that the revision petitioner may kindly be dismissed with heavy cost for wasting the precious time of the court.
6. Ld. APP for the State/R1 has argued that the order passed by the Ld.MM is a legal order and it does not call for any interference by this court. The revision may kindly be dismissed.
7. In consideration of the submissions made by Ld. Counsel for the revisionist as well as R2 and Ld.APP for R1, I have also perused the trial court file. The present revision has been filed U/s 397/399/401 Cr.PC Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.7 of 10 against the order dated 6.5.09 passed by Sh Jitender Mishra, Ld.MM. I have perused the said order. The order under challenge is reproduced below: "06.05.2009 Present: Ld. Addl.PP for the State AR for the complainant with Ld. Counsel.
It is submitted by the Ld. Counsel for the complainant that in this case after the earlier protest petition the Ld.Predecessor ordered re-investigation. However, the IO has filed cancellation once again but since the matter is getting delayed the complainant submits that accused no.1 and 2 only be summoned at this stage and the remaining accused the complainant will move appropriate application u/s 319 Cr.PC.
In the facts of the case, let accused no.1 and 2 be summoned for 28.07.2009.
sd/-
(JITENDRA MISHRA) MM/ND/06.05.2009"
8. On perusal of the file, it is revealed that complainant(respondent no.2) has filed an application u/s 156(3) Cr.PC which was allowed by Ld. MM and investigation was done. Challan u/s 173 Cr.PC was filed. In the application u/s 156(3),the present revisionist Arun Bhatia was impleaded as accused no.2. On the submission of the Ld. Counsel for the complainant/respondent, accused no.1 and 2 were summoned by the Ld. MM. Complaint u/s 406/420/422/120B IPC has been filed. On perusal of the file it is revealed that no presummoning evidence has been recorded by the Ld. MM. Section 200 Cr.PC contemplates - Examination of complainant - A Magistrate taking Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.8 of 10 cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -
(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) If the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192.
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
9. Section 200 Cr.PC clearly states about recording of statement of the complainant/witnesses before taking cognizance except in case of complainant being public servant. But this requirement has not been fulfilled in the present case.
10. I have perused the order passed by the Ld.MM. On perusal of the same it is revealed that it is not a speaking order. The order does not disclosed as to how the Ld.MM has reached at the conclusion for summoning accused no.1&2. Even it has also not been mentioned as under which sections the cognizance has been taken by the Ld.MM against the accused/revisionist. Summoning of an accused in a criminal cases is a serious matter. Criminal Law cannot be set into motion as a matter of course. The order of Ld. MM summoning the accused must reflect that he has applied his mind to the facts of the case and the law Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.9 of 10 applicable thereto. In the present case Ld. MM has not complied the provisions of Cr.PC. Even the section under which the accused has been summoned has not been reflected in the order.
11 In view of my above discussions I am of the view that it is fit case which can be remanded back to the Ld. MM. I therefore remand back this case to the concerned Ld.MM with the direction to proceed in accordance with law. The order dated 06.05.2009 is hereby set aside. Ld. MM is directed to adopt the laid down procedure under criminal procedure code and pass the order afresh. Trial court file alongwith copy of this order be sent back to the concerned Ld.MM and revision file be consigned to record room.
Announced in the Open Court on 09.08.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI Arun Bhatia Vs. State &Anr CR no.11/2010 Page No.10 of 10