Delhi District Court
Pooja Press & Prakashan Pvt Ltd vs Spectrum Magazine Ltd on 4 October, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
REVISION PETITION NO.s 204666 to 204672 and 204674 to 204677 of
2016
CNR No.s DLSE01-000756-2013 to DLSE01-000759-2013, DLSE01-
000764-2013, DLSE01-000765-2013, DLSE01-000767-2013, DLSE01-
000771-2013, DLSE01-000773-2013 to DLSE01-000775-2013
IN THE MATTER OF:
1. Pooja Press & Prakashan Pvt Ltd.,
B-168-169, DDA Sheds,
Okhla Industrial Area, Phase-1,
New Delhi-110020
2. Shri Om Prakash Gupta,
Director of Pooja Press & Prakashan Pvt Ltd,
B-168-169, DDA Sheds, Okhla Industrial Area, Phase-1,
New Delhi-110020
.......Revisionists
Versus
1. Spectrum Magazine Ltd.
9/1, Secular House,
Qutab Institutional Area, Aruna Asaf Ali Marg,
New Delhi-110067
2. Shri Amit Metre,
Publisher/Managing Director,
Spectrum Magazine Ltd,
4/19, F-Block, Arjun Marg,
Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016
Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 1 of 16
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2021.10.04
15:54:45 +0530
DLF City, Phase-1, Gurgaon
........Respondents
All Cases Instituted on : 27.05.2013
Reserved on : 22.09.2021
Pronounced on : 04.10.2021
JUDGMENT
1. Vide this common judgment, I shall decide the instant eleven revision petitions wherein revisionists take exception to the common order dated 24.01.2013, passed by Ld JSCC/ASCJ/GJ, Patiala House Courts, New Delhi in cases bearing CC No.s 2519/2009, 2524/2009, 2519A/2009, 2525/2009, 2528/2009, 2526/2009, 2121/2009, 2527/2009, 2520/2009, 2523/2009 and 2522/2009, all titled as Pooja Press & Prakashan Pvt Ltd Vs Spectrum Magazine Ltd & Ors, whereby application of applicant Anil Metre was allowed and proceedings against him was ordered to be stopped by Ld Trial Court in terms of provisions of section 258 CrPC.
2. At the outset, I may observe that instead of 'Anil Metre', 'Amit Metre' was arrayed as respondent No.2 in said revision petitions. Subsequently, an application was filed by revisionists seeking to provide correct name and address of respondent no.2, which stood dismissed by my Ld. Predecessor vide order dated 30.08.2017. On being challenged, Hon'ble High Court vide order dated 10.01.2019 (in Crl. M.C. No. 5324/2017), allowed the prayer of revisionists to the extent that notice be issued (of the revision petitions) to 'Anil Metre' on the address given in the application (moved by revisionists before this court) or any other address so furnished by revisionist. Accordingly, the notice was issued to 'Anil Metre', who appeared and contested the present petitions. Therefore, the respondent No.2 in the Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 2 of 16 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:54:56 +0530 instant case is 'Anil Metre' and not 'Amit Metre'.
3. Brief facts may be taken note of : Eleven criminal complaints came to be filed by same complainants i.e. the revisionists herein with the allegations that the accused persons issued different cheques in discharge of their legal liabilities, however same got dishonoured and despite issuance of legal demand notice dated 23.02.2002 (issued to Spectrum Magazines Ltd, Sh Amit Metre, Sh Manish Sinha and Sh Shobhit), no payment was made.
4. In the said complaints, initially four persons were arrayed as accused, however later on, vide order dated 20.09.2003, name of accused no.3 & 4 namely Manish Sinha and Shobhit were deleted on request of complainant/revisionists. After deletion of said names, only two accused i.e. accused no.1 i.e. Company Spectrum Magazine Ltd and accused no.2 Amit Metre i.e. Editor and Publisher in the company/accused no.1, remained to be prosecuted. Admittedly, the demand notices were addressed to the same person as has been arrayed as accused no.2 i.e. Sh Amit Metre. Record further reveals that vide order dated 21.09.2002, respondents were summoned to face trial for offences under section 138 of NI Act by Ld. Trial Court.
5. The controversy at hand pertains to accused no.2 which was described in the said criminal complaint cases identically in the following manner :-
"Shri Amit Metre, Publisher/Managing Director, Spectrum Magazine Ltd, 9/1 Secular House, Qutub Institutional Area, Aruna Asaf Ali Marg, New Delhi 110067"
6. The eleven cases pertain to different cheques were stated to have been issued for and on behalf of accused no.1/respondent no.1 company in favour of the complainant/revisionist. Each of the said cheques is alleged Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 3 of 16 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:55:06 +0530 to have been returned as 'unpaid' on account of reasons which are stated to attract the provision of Section 138 Negotiable Instruments Act. In each complaint case, the revisionists (complainant) claimed to have issued notice of demand and alleged that inspite of the service of said demand notice, the amounts were not paid. The copies of the demand notices (which have been relied upon) indicate that they were addressed to, and sent by complainant in the name of same person as has been arrayed accused no.2, noticeably, the name being described as 'Sh Amit Metre'.
7. It appears from the proceedings of Ld. Trial Court that the process in the name of said accused no.2 "Amit Metre" had returned unserved on 21.09.2002 with the report to the effect that, on tender, it had been 'refused'. On the basis of such reports, the learned Magistrate ordered issuance of non-bailable warrants (NBW).
8. It appears further from the record that 'Anil Metre' moved Hon'ble High Court of Delhi in Criminal Miscellaneous (Main) No.2358/2003 seeking inter alia cancellation of NBW, also praying for joint trial in all the eleven cases. The said petition was decided by Hon'ble High Court vide order dated 30.05.2003 directing him to appear before the trial court on or before the next date fixed (04.06.2003) and apply for bail in accordance with law, staying the enforcement of NBWs issued against him. However, the question of joint trial was left open by Hon'ble High Court with direction to agitate the same before the trial court.
9. In the wake of said order, 'Anil Metre' appeared before the Metropolitan Magistrate on 04.06.2003 seeking cancellation of NBWs. His application was allowed and the NBWs were cancelled and bail bonds were Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 4 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:55:14 +0530 furnished on his behalf before Ld. Trial Court. It is noticeable that even in the said order, the difference in the names came to be noted, though observation of the learned Magistrate was that the name is 'wrong'.
10. Be that as it may, in the subsequent proceedings, the petitioner continued to appear and his presence continued to be recorded as that of accused no.2.
11. Against the above backdrop, Anil Metre moved application on 15.04.2010 seeking 'discharge from appearance', referring in that context inter alia to the fact that the demand notice which is pre-requisite for constituting offence under section 138 Negotiable Instruments Act had not been addressed to or served upon, him.
12. Ld. Trial Court, vide impugned order dated 24.01.2013, allowed the said application and proceedings against him was ordered to be stopped by Ld Trial Court keeping in view the provisions of section 258 Cr.P.C. The relevant observations of impugned order are being reproduced as under for the sake of convenience :-
"12. In the case in hand, it revealed that no notice was ever issued to Mr. Anil Metre. No demand for the cheque amount was made from Anil Metre. Mr Anil Metre present before this court has never been named in the notice of demand. He is not named as an accused in the aforesaid complaints filed in the year 2002. Furthermore, no effort has ever been made by the complainant to bring Mr Anil Metre, in the array of parties.
It is settled proposition of law that the offence u/s 138 N.I. Act is regulatory in nature and for proving that accused had committed an offence u/s 138 N.I. Act, the ingredients thereof are required to be proved. The ingredients for constitution of the offence laid down in provisos (a), (b) and (c) appended to section 138 NI Act are intended to be applied in favour of the accused. Harman Electronics (P) Ltd. Vs. National Panasonic India (P) Ltd., 1 SCC 720. Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 5 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:55:22 +0530
13. The object of notice is to give a chance to the drawer of the cheque to rectify his commission. The demand in the notice has to be in relation to 'said amount of money' as described in the provision. The expression 'payment of any amount of money' as appearing in the main portion of section 138 NI Act goes to the roots and it needs to be established that the cheque was drawn for the purpose of discharging in whole or in part of any debt or any liability. What is necessary is making of a demand for the amount covered by the bounced cheque. K.R. Bindra VS Dr. G Adinarayana, JT 2003(8) SC 71. Furthermore, the Hon'ble High Court of Delhi in Crl. M.C. 710/2010 in the matter of Brainobrain Kids Academy P Ltd & Anr Vs Continental Advertising P Ltd. HMJ Mukta Gupta, held on 15.03.2012 that unless a notice is served in company with Proviso (b) appended to Section 138 of NI Act, the complainant petition would not be maintainable. The Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology "payment of the said amount of money". Such a notice has to be issued within a period of 30 days (earlier it was fifteen days) from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. An omnibus notice without calling upon the alleged accused to pay the amount of cheque issued will not serve the requirement of law.
14. Even at this stage of the proceedings no amendment of the complaint is permissible as the Hon'ble Apex Court, in the case of Subodh S. Salaskar Vs Jayaprakash M. Shah & another, 2008 (3) R.C. R. (Crl.) 875 held that there is no jurisdiction to allow the amendment of a complaint at a later stage. It has been also well founded by the catena of judgments that there is no provision in Cr.P.C. to change / alter narration or any other facts mentioned in complaint. Furthermore, no amendment can be carried out in case title so as to substitute main complainant or accused, a different person cannot be substituted, since the complainant must be based on some cause of action which must be subject to the period of limitation. Relevance are also Bapuji Murugesan Vs Mythili Rajagopalan, Manu/TN/2952/2009; Jai Mata Traders Vs Unique Foundary Regd. Manu/PH/3121/2011; P. Lingappan Vs R Palanisamy Manu/TN/7645/2007 wherein it were vividly clear that amendment in the complaint cannot be allowed.
15. Furthermore, no compliance of the mandatory requirements of Section 138 NI Act was made by the complainant. The notice of demand as per the provisions of NI Act has never been made to Anil Metre. It is held by the Apex Court in Rahul Builders VS Arihant Fertilizers & Chemicals & Anr, (2008) 2 SCC 321 that operation of section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 6 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:55:30 +0530 served in conformity with proviso (b) appended to section 138 of the Act, the complainant petition would not be maintainable. One of the conditions was service of a notice of making demand of the payment of the amount of cheque as is evident from the use of the phraseology "payment of the said amount of money". If in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the might well fail to meet the legal requirement and may be regarded as bad. The notice in the question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, as such the present case is not maintainable u/s 138 NI Act.
16. The appearance of Mr Anil Metre as a representative of accused no.1 and sometimes recognition of him as accused no.2 cannot amend the complaint and requirement of notice and put Mr Anil Metre in the array of parties. Further, in the present cases complaint lies only after fulfillment of the conditions of the provisos of Section 138 NI Act, no procedure in compliance of law is completed in regard to Mr Anil Metre i.e. no notice of demand of the cheque amount was made from Mr Anil Metre; no notice of demand was received by Mr Anil Metre; no complaint was filed against Mr Anil Metre. Therefore, I find it appropriate that proceedings against Mr Anil Metre be stopped. It is more so because Mr Anil Metre has faced a long drawn battle of trial about nine years and therefore, this agony of Mr Anil Metre cannot be prolonged further.
17. In view of facts and circumstances and in the light of aforesaid discussions, applications are allowed and proceedings against Mr Anil Metre are stopped in view of the provisions of Section 258 Cr.P.C. and the present proceedings be continued against accused no.1 i.e. company. Accordingly, the present applications stand disposed off."
13. The revisionists are aggrieved with the said order and have assailed the same on various grounds which can be summarized as under :-
i) That Ld Trial Court erred in law by passing the impugned order which is without any jurisdiction i.e. Magistrate has no power to stop the proceedings in a complaint case;
ii) That Ld Trial Court failed to appreciate the fact that respondent no.2 is Director of respondent no.1 company and he is responsible for day to day affairs and former has never challenged his own identity rather he has been contesting the case as accused no.2 before Ld Trial Court;
Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 7 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:55:39 +0530
iii) That Ld Trial Court failed to appreciate the fact that respondent no.2 knowingly with malafide intention raised frivolous issues to avoid his legal liabilities;
iv) That Ld Trial Court failed to consider the fact that respondent no.2 has categorically admitted in his affidavit that he is accused no.2 in the present case and has also approached Hon'ble High Court on the same facts for quashing of NBWs issued against him wherein Hon'ble High Court directed him to face trial;
v) That impugned order is in contradiction to settled principles of law;
vi) That Ld Trial Court failed to appreciate the fact that Director / office bearers of a Company are vicariously liable for any act of company;
vii) That revisionists fulfilled the ingredients of section 141 NI Act in letter and spirit.
14. Ld counsel for revisionists has argued on the line of grounds taken in the instant petitions. It is vehemently argued that Ld Magistrate has no jurisdictional power to stop the proceedings in a summon triable cases instituted upon complaint under section 258 CrPC. It is argued that impugned order whereby proceedings was stopped against one of the accused i.e. respondent Anil Metre, is against the settled principle of law.
14.1 It is further argued that actual name of the accused is Anil Metre, however complaints were filed mentioning the name of accused as Amit Metre due to typographical error. It is argued that contention of respondents, that since the demand notice was not sent to Anil Metre, hence he cannot be prosecuted, is fallacious as it is a settled law that a notice to company is sufficient notice to Managing Director/Authorized Signatory/Publisher/Editor being put to notice. Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 8 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:55:47 +0530 14.2 It is argued that Ld Trial Court has committed grave error by passing the impugned order. On the strength of these arguments, revisionists seek setting aside of impugned order. In support of his contention, Ld counsel for revisionists has relied upon following judgments :-
a) John Thomas Vs Dr. K Jagadessan, JT 2001 (5) SC 398,
b) M/s Print Links (India) & Anr Vs Kiran Paper Convertors & Ors, 2007 CrlLJ 3460,
c) U Pollution Control Board Vs M/s Modi Distillery, AIR 1988 SC 1128
15. Per contra, Ld counsel for respondents has argued that there is no infirmity in the impugned order and present petitions are liable to be dismissed being devoid of any merit. It is argued that Ld Trial Court passed the impugned order in view of the fact that necessary ingredients of offence under section 138 NI Act were not fulfilled in the instant cases. He argued that neither any demand notice was issued to Anil Metre nor he was impleaded as an accused (in the array of parties) in original complaints. He further argued that revisionists were very well aware about the Directors, Officer-incharge and other persons with whom, it had dealt in Spectrum Magazines for a long period. He argued that revisionists consciously had issued notice to the parties whom they sought to make liable for making alleged purported payments. It was prayed that present petitions be dismissed.
16. I have heard rival contentions and perused the record.
17. Admittedly, in the instant case, Ld Trial Court took recourse to provisions of section 258 Cr.PC while allowing the application moved on behalf of respondent/applicant (Anil Metre) and stopped pending proceedings against him in all eleven criminal complaints while directing for continuance Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 9 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:56:18 +0530 of proceedings against accused no.1 i.e. company. Since statutory provisions of section 258 CrPC has an important bearing for outcome of present petition, therefore, same is being reproduced hereinunder for the sake of convenience:-
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 witnesses 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."
18. Therefore, a cursory reading of section 258 Cr.PC reveals that the said statutory provisions are applicable in a summon triable case which is instituted otherwise than upon a complaint i.e. a case instituted upon a police report popularly known as 'State Case'. The said provisions specifically excludes a private criminal complaint like the case in hand (in a summon triable case) from its purview.
19. Apex Court recently in Re: Expeditious Trial of Cases under Section 138 N.I.Act, 1881. Suo motu Writ Petition (Crl.) No. 2 of 2020 D.O.D. 16.04.2021, observed as under:-
"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.
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 Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 10 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:56:27 +0530 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 creation. The Judge's duty is to interpret and apply the law, not to change it to meet the Judge's idea of what justice requires. 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 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 well."
20. Further, Andhra Pradesh High Court in case Deevi Srinivasa Sai Radha Lakshmi & Anr vs State Of Andhra Pradesh , Criminal Petition No.648 of 2015 dated 31-03-2015, held as under :-
" 5) Upon hearing both sides and on perusal of record, I find no merits in the petition. This is a case instituted on private complaint and it is a summons case. So, the procedure contemplated under Sections 251 to 259 is applicable to the case on hand. Section 258 deals with powers of Magistrate to stop proceedings in certain cases, which reads thus:
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 Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 11 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:56:36 +0530 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 witnesses 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.
Under Section 258 of the Code, in appropriate cases, the Magistrate can stop the proceedings at any stage without pronouncing judgment. If stoppage of proceedings is effected after recording the evidence of principal witnesses, Magistrate has to pronounce the judgment of acquittal and in any other case, the Magistrate can release the accused and such release has an effect of discharging the accused. The underlying principle in empowering the Magistrate to stop the proceedings without pronouncing the judgment or pronouncing judgment of acquittal or releasing the accused is to prevent miscarriage of justice i.e. upon finding that there is no material to proceed further and such proceeding amounts to abuse of process of law and resulting in undue harassment to the accused. What is to be noted from Section 258 Cr.P.C. is that it applies only to those cases which are instituted on police reports but not to the cases instituted upon private complaints. This was made clear in the following judgments.
a) In John Thomas v. K.Jagadeesan Apex Court held thus: One of the normal rules in summons cases is that once trial started, it should reach its normal culmination. But Section 258 is included in the Chapter XX of the Code in the form of an exception to the aforesaid normal progress chart of the trial in summons cases. But by S.258 the power of 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.
b) Similar view was taken in another decision reported in Manjunath C.Kammar v. A.Kanthilak and Company wherein Karnataka High court held thus:
10. In these two matters, the proceedings are initiated on the basis of the complaints under Section 200 Cr.P.C. Under such circumstances, the learned Magistrate does not get Jurisdiction to proceed under Section 258 Cr.P.C. and the same can be exercised only if the proceedings are instituted otherwise than upon a complaint. In other words, the language of Section 258 Cr.P.C. is clear that this Section applies only to cases based on police report. As the present cases are based on private complaints, Section 258 Cr.P.C. will not apply to these cases.
Therefore, from Section 258 Cr.P.C. and above precedential jurisprudence, it is clear that stoppage of proceeding at different stages as contemplated under Section 258 Cr.P.C. can take place only in those cases instituted otherwise than upon a complaint. As already stated, since the case on hand is one instituted upon Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 12 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:56:43 +0530 private complaint, the benefit under Section 258 Cr.P.C. cannot be extended to it. So far as other points raised by the petitioner/A2 is concerned, the trial Court rightly held that whether the complainant deposed falsehood with regard to timing of the offence and other material facts or not can be decided only after due trial. In this petition the same cannot be determined which will amount to premature conclusion. So, at the outset, the impugned order does not suffer any illegality or irregularity warranting interference."
21. Therefore, in view of settled position of law, I am of the considered view that Ld. Trial Court erred in law by taking recourse to section 258 Cr.PC while directing for stoppage of proceedings against Anil Metre. Therefore, impugned order is liable to be set-aside having been passed in contravention of salutary provisions of section 258 CrPC.
22. Even otherwise, the case in hand appears to be one of misdescription of name without the actual accused (Anil Metre) being misled in any manner due to said inadvertent error. It is evident that the accused no.2 was sought to be prosecuted vicariously in view of he being Editor and Publisher of the accused no.1 i.e. Spectrum Magazine Ltd. Therefore, mere misdescription in his name would not alter his actual position (i.e. of Editor/Publisher) in accused/respondent company.
23. The plea of respondent (Anil Metre), that proceedings against him could not have been continued as very ingredients of section 138 NI Act were not fulfilled for non-serving of demand notice to him, is fallacious. Admittedly, in the instant case, the demand notices were also sent to respondent no.1/company. In my view, the demand notice to a Company is sufficient notice to its Directors/Managing Directors/Editor/Publisher, who are either signatory or incharge and responsible for conduct of day to day affairs of the company. Therefore, no separate notice was required to be sent Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 13 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:56:50 +0530 to the Editor and Publisher of accused no.1 company i.e. respondent no.2 Anil Metre in the instant case. Reliance is placed upon judgment of High Court of Delhi in case Ranjit Tiwary Vs Narender Nayyar, Crl M.C. No. 4077/2011, decided on 02.07.2012, wherein it was observed as under :-
"16. According to Section 141 (1), vicarious liability is attributed to the persons mentioned therein for the offence committed by the company, on the very same analogy notice served on the company amounts to serving of notice on all the persons as found in Section 141 (1) of N.I. Act. A person who was in charge of the company and was responsible to the company for the conduct of the business of the company alone can be prosecuted, while so, such a person cannot deny knowledge about the service of notice to the company. Only in that view of the matter vicarious liability is cast upon those persons and that is why no notice to them is contemplated.
17. The same view has been taken by this Court in the case of Jain Associates (supra). Therefore, in view of the legal position discussed above, the petitioner being the Managing Director of the company is responsible for the act, commission and omission of the company. Therefore, I find no discrepancy in the order passed by the learned trial court. I concur with the same."
24. Therefore, in view of settled legal position, notice to respondent company was sufficient notice to its Editor and Publisher being incharge and responsible for conduct of day to day affairs of the company which is a publishing house. In my considered view, by said demand notice (addressed to company) respondent no.2 i.e. Amit Metre was put to sufficient notice through respondent no.1 company about the cheques in question being dishonoured and revisionists calling upon them to make payment within the stipulated period in terms of said notice. Therefore, all the contentions of respondent are without merit and the instant petitions deserve to be allowed.
25. Accordingly, the impugned order dated 24.01.2013 thereby directing to stop proceedings against Anil Metre stands set aside being not sustainable in the eyes of law. Ld. Trial Court is directed to proceed Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 14 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:57:01 +0530 further in the matter as per law.
26. Before parting, I may hasten to add that the respondent Anil Metre is not absolutely remediless. If he feels that there is no case against him, nothing stops him from applying for a summary judgment by the Ld. Trial Court. It appears that the respondent is simply interested in delaying the matter on mere technicalities than seeking just adjudication of the dispute.
27. I may also add here that vide order dated 22.09.2021 after hearing both the parties, the matter was fixed for orders for today and liberty was given to parties to file brief written synopsis within a week. The written arguments came to be filed under signature of Sh Mayank Kumar, Ld counsel who had argued the matter on behalf of respondents on 22.09.2021. In the said written arguments, instead of arguments, Ld counsel makes a prayer that noticee may be allowed to file reply to the present petition as a noticee so that the criminal petition can be decided on merit. The prayer of Ld counsel is not only frivolous but is also a mischievous attempt on his part to delay the disposal of instant revision petitions. Though, I am refraining myself from imposing any cost upon the respondent Anil Metre for this delaying tactics, however this court is anguished and appalled by the insidious and cavalier approach of the respondents/counsel herein.
28. With these observations, present petitions stand allowed.
29. Ld. Trial Court is directed to proceed further against respondent Anil Metre as per law. Parties are directed to appear before Ld. Trial Court on 11.10.2021 at 2 pm.
30. Copy of this judgment be sent to Ld. Trial court. Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 15 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.04 15:57:13 +0530
31. Revision files be consigned to Record Room after due compliance. One copy of judgment under signatures of undersigned be placed in Crl Rev. No. 204666/2016 and digitally signed copies be placed in other files.
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2021.10.04 15:57:20
+0530
Announced in the open (ANUJ AGRAWAL)
Court on 04th October 2021 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
Crl Rev. No.s 204666 to 204672 and 204674 to 204677 of 2016 Pooja Press & Prakashan Pvt Ltd & Anr Vs Spectrum Magazine Ltd & Anr Page No. 16 of 16