Delhi District Court
Vijayraj Champalala Aggarwal vs Halonix Technologies Ptivate Limited on 20 October, 2016
Cri. Rev. No.8878/16
Vijayraj Champala Aggarwal
20.10.2016
Pre: None for the parties.
File perused, vide separate detailed order placed along side in the
file, I do not find any force in the submissions of ld. Counsel for the revisionist
that impugned order of summoning is either impacted by illegality, impropriety
and incorrectness. Therefore, revision petition does not deserve any merit to
succeed at this stage. Hence, in light of these facts and circumstances of the
case, revision petition is dismissed. Accordingly, the revision petition
stands disposed of. Both the parties are directed to appear before ld. trial court
on 21.11.2016. Trial Court record, if any, be sent back with a copy of the order.
Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE-03
PATIALA HOUSE COURTS
NEW DELHI
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS JUDGE
(03) , PATIALA HOUSE COURT, NEW DELHI
Criminal rev. Petition No.8878/16
IN THE MATTER OF
Vijayraj Champalala Aggarwal
Shop No. 109,
Ramkrishna Apartment,
Chhapuru Nagar Chowk
Central Avenue,
Nagpur, Maharashtra- 440 008
.........Revisionist
Versus
Halonix Technologies Ptivate Limited
Through its AR Jitesh Puri.
..............Respondent
20.10.2016
ORDER
1. Application filed u/s 5 of Limitation Act is allowed subject to just exception.
2. This revision petition has been filed against the summoning order dated 19.02.2016 passed by ld. MM (hereafter referred as impugned order) whereby ld. trial court was pleased to issue summon for the offence u/s 138 N. I. Act against the revisionists in CC no.1225/1/15 titled as "Halonix Technologies Pvt. Ltd. v. Vijaraj Champalal Aggarwal".
3. Briefly the factual matrix of the case is that a complaint case is pending between the parties before ld. trial court for the offence u/s 138 N. I. Act. In this case ld. trial court after perusal of the entire record, took the cognizance for the offence u/s 138 N I Act, 1881 and issued summons against the aforesaid revisionists. Feeling aggrieved with the impugned order dt. 19.02.2016, ld. counsel filed revision petition.
4. Arguments on revision petition heard at length. During the course of arguments, ld. Counsel for the revisionist submitted that cheque in question has been shown issued by the company Halonix Ltd. whereas the case has been filed by the respondent in the name of Halonix Technology Pvt. Ltd. He further submitted that both names are different. He further submitted that cheques in question were issued as security. He again submit sthat he has also filed an application for condonation of delay and delay is attributable to the proceedings entered between the parties due to settlement. On these grounds he submitted that his application u/s 5 of Limitation Act and revision petition be allowed.
5. Contrary to it, ld. Counsel for the respondent submitted that there was no settlement between the parties therefore, plea of the revisionist to condone delay is not sustainable. Ld. Counsel for the respondent again submitted that both the companies as referred by the revisionist having same directors. On these grounds, ld. Counsel for the respondent submitted that revision petition is liable to be dismissed.
6. I have perused the impugned order dated 19.02.2016, wherein it has been observed that :-
"19.02.2016 Present: AR of complainant. Sh. Jitesh Puri along with counsel. File perused. Heard. It is submitted by Ld. Counsel for the complainant that the bank of complainant is situated within the territorial jurisdiction of this court and the complaint is well within limitation. From perusal of complaint and documents attached, prima facie offence u/S 138 of NI Act 1881 is made out. Accordingly, cognizance of offence is taken out. CW-01 ARR of complainant, Sh. Jitesh Puri has tendered pre-summoning evidence by way of affidavit. At the request of CW-01, PSE is closed. Materials on record suggest sufficient ground to proceed further. Accordingly, issue summon to the accused, subject to filing PF/RC within fifteen days from today. Summon be sent for service through all permissible modes. Put up on 20.10.2016."
7. Before reaching at any conclusion let the relevant sections be re-produced verbatim which are as under:-
"Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation -- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
8. Having heard the arguments of both the parties, I am of the view that main arguments of ld. counsel for the revisionist are that cheques in question have been shown issued by the company Halonix Ltd. whereas the case has been filed by the respondent in the name of Halonix Technology Pvt. Ltd. Both names are different. He also raised the contention that cheques in question were issued as security. These plea of ld. counsel for the revisionist has no weightage at this stage since in judgment "Sudarshan Singh Dhariwal Vs. R.L.Kukreja, 2014 1 AD (CRI.) (DHC)22", wherein it has been held that:-
"9. It is a settled legal position that powers possessed by the High Court under Section 482 Cr.P.C. although are very wide but the same requires a great caution in its exercise. In a case where upon considering the material on record if the Courts finds that no offence is made out or there is a legal bar to the prosecution of the accused under the provisions of the Code or any other law for the time being in force or their exists no ground to proceed against the accused, the Court may intervene and exercise its extraordinary powers to prevent the miscarriage of justice against the alleged accused. It is also settled legal position that at the stage of summoning, the Court has not to meticulously scrutinize the material on record, to find as to whether the offence is made out against the accused or not. The petitioner in the present petition has raised various factual controversies and in my view the same cannot be decided without the petitioner facing the trial of the complaint case filed by the respondent.
10. In the light of the above legal position, this Court do not find any extraordinary or exceptional reasons exists to invoke the inherent powers of this Court under Section 482 Cr.P.C. to interfere with the impugned order dated 18.1.2012 passed by the learned Trial Court. There is no merit in the present petition, the same is hereby dismissed."
9. It is well settled proposition of law that determination of the facts on issuance of summons, is exclusive domain of the original court of jurisdiction yet this court has limited jurisdiction to enter into the area of discretion of Ld. M.M. on the ground of propriety and correctness. Since, the revisionist shall get an opportunity to lead evidence / argument during the course of inquiry on charge/ notice as the case may be, so the plea can be raised at the time of framing of notice/ charge. Having found so, and taking into consideration the observations made in judgment "Sudarshan Singh Dhariwal Vs. R.L.Kukreja" referred [supra] I do not find any force in the submissions of ld. Counsel for the revisionist that impugned order of summoning is either impacted by illegality, impropriety and incorrectness. Therefore, revision petition does not deserve any merit to succeed at this stage. Hence, in light of these facts and circumstances of the case, revision petition is dismissed. Accordingly, the revision petition stands disposed of. Both the parties are directed to appear before ld. trial court on 21.11.2016. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 20.10.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI