Delhi District Court
M/S C.R. & Sons Associates vs M/S Lovely Home Co-Operative Group on 3 May, 2018
IN THE COURT OF SH. JAGDISH KUMAR,
ADDITIONAL SESSIONS JUDGE-02 (WEST) , DELHI.
Criminal Rev. No. 104/18
M/s C.R. & Sons Associates
Having its office at
B-201, Vikas Tower
Vikaspuri
New Delhi-110018
Through its Proprietor
Sh. Inder Kapoor Petitioner
Versus
1. M/s Lovely Home Co-operative Group
Housing Society Ltd.
Through its secretary
At Plot no. 5, Sector 5
Dwarka, New Delhi
Also At:
6662, 2/2, Dev Nagar
Karol Bagh
New Delhi-110005
2. Sh. L. R. Tongaria
S/o Late Sh. Ishwarlal
R/o Plot no. B-403,
Lovely Home Apartment
At Plot no. 5, Sector 5
Dwarka, New Delhi
3. Sh. D. P. Taneja
S/o Late Sh. R. D. Taneja
R/o M-127, Akirti Aqua City
Bhopal, M.P.
4. Sh. Sheesh Pal
S/o Late Sh. Sawnu Ram
R/o B-206, Lovely Home Apartment
At Plot no. 5, Sector 5
Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 1 of 8
Dwarka, New Delhi Respondents
Date of Institution : 24.03.2018
Date of Assignment to this court : 26.03.2018
Date of Arguments : 03.05.2018
Date of Judgment/orders : 03.05.2018
AND
Criminal Rev. No. 114/18
M/s C.R. S Infra Projects Ltd.
(Previously known as M/s C.R. & Sons Builders and
Developers Pvt. Ltd.)
Having its office at
B-201, Vikas Tower
Vikaspuri
Near PVR Cineplex
New Delhi-110018
Through its Managing Director Petitioner
Versus
1. M/s Lovely Home Co-operative Group
Housing Society Ltd.
Through its secretary
At Plot no. 5, Sector 5
Dwarka, New Delhi
Also At:
6662, 2/2, Dev Nagar
Karol Bagh
New Delhi-110005
2. Sh. L. R. Tongaria
S/o Late Sh. Ishwarlal
R/o Plot no. B-403,
Lovely Home Apartment
At Plot no. 5, Sector 5
Dwarka, New Delhi
3. Sh. D. P. Taneja
Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 2 of 8
S/o Late Sh. R. D. Taneja
R/o M-127, Akirti Aqua City
Bhopal, M.P.
4. Sh. Sheesh Pal
S/o Late Sh. Sawnu Ram
R/o B-206, Lovely Home Apartment
At Plot no. 5, Sector 5
Dwarka, New Delhi Respondents
Date of Institution : 31.03.2018
Date of Assignment to this court : 02.04.2018
Date of Arguments : 03.05.2018
Date of Judgment/orders : 03.05.2018
JUDGMENT:
1. This common judgment shall dispose of two revision petitions bearing no. 104/18 and 114/18 being preferred U/S 397/399 Cr.P.C being arose from the similar order dated 15.03.2018 (hereinafter called the 'impugned order) as passed by Ld. MM/West Distt./Delhi, (hereinafter called the Ld. Trial Court), in both the complaint cases (complaint no. 15963/16 & 15964/16). Vide impugned order the Ld. Trial Court has ordered the acquittal of the respondents for the alleged offence U/s 138 N.I. Act and also directed the revisionist to return a sum of Rs. 10 lacs and giving directions to the ahlmad to sent the remaining settled amount of Rs. 28 Lacs, being paid by the respondents vide two demand drafts bearing no.286981 and 286980 dated 13.03.2018 for a sum of Rs. 23 Lac and Rs. 5 Lacs respectively, to the office of Deputy Commissioner of Income Tax.
2. The brief facts of the case are that respondent no. 1 is a Co-
operative Group Housing Society and respondent no. 2 to 4 are the principal officers of the respondent no. 1 and are in direct control and Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 3 of 8 management of respondent no. 1. The respondent no. 1 had issued two cheques bearing no. 523153 dated 31.10.2002 drawn on UCO bank, Parliament Street, New Delhi for a sum of Rs. 1,50,000/- and another cheque bearing no. 523155 dated 26.01.2003 for a sum of Rs. 1,50,000/- (being the subject matter of complaint no.15964/16) and cheque bearing no. 523152 dated 31.10.2002 drawn on UCO Bank Parliament Street, New Delhi for a sum of Rs. 7,50,000/- and cheque bearing no. 523154 dated 26.01.2003 for a sum of Rs. 7,50,000/- (being the subject matter of complaint no. 15963/16) being drawn on the same bank in favour of the revisionist to discharge their legal enforceable liability but the said cheques were dishonoured for reasons 'stop payment' vide returning memo dated 06.03.2003 and 11.03.2003 respectively. The cheque bearing no. 523152 was dishonoured with reasons 'Stop payment' vide returning memo dated 06.03.2003. The cheque bearing no. 523154 was dishonoured with reasons 'Stop payment' vide returning memo dated 11.03.2003.
3. Thereafter, a notice was issued to the respondent no. 1 as well as to respondent no. 2 to 4 for making the payments against the dishonoured cheques but despite that no payment was made by the respondents. Consequently, the revisionist has filed a two aforesaid complaint cases U/s 138 N.I. Act against the respondents.
4. The Ld. Trial Court after pre-summoning evidence has summoned the respondents as accused and thereafter served upon them a notice U/s 251 Cr.PC for the alleged offence U/s 138 N. I. Act in both the complaint cases. The trial proceeded further in both the complaint cases and both the cases were reached upto the stage of final arguments but meanwhile the revisionist and respondents have arrived at an out of court settlement in both the cases which was Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 4 of 8 recorded by the Ld. Trial Court in the Court on 03.02.2018. It has come on record that revisionist and respondents have settled both the complaints bearing no. 15963/16 as well as another complaint bearing no. 15964/16 and one another proceeding being initiated, by the respondent no. 1 U/s 34 of the Arbitration and Conciliation Act. The full and final settlement was arrived at between the revisionist and respondents for a sum of Rs. 38 Lacs. The Ld. Trial Court has posted both the case for 15.03.2018 for making a payment / verification of the payment. But on 15.03.2018 it was brought to the notice of Ld. Trial Court that a notice has been issued by the Income Tax Department to the respondents by instructing them to pay to the department the amount which is to be paid by them to the revisionist, as there were Rs. 14.41 Crores to be recovered from the revisionist. The Ld. Trial Court, thereafter, acquitted the respondents and directed the revisionist to return a sum of Rs. 10 Lacs and giving directions to the ahlmad to sent the remaining settled amount of Rs. 28 Lacs, being paid by the respondents vide two demand drafts bearing no.286981 and 286980 dated 13.03.2018 for a sum of Rs. 23 Lac and Rs. 5 Lacs respectively, to the office of Deputy Commissioner of Income Tax.
5. Being aggrieved from the impugned order revisionist has been challenged the impugned order on the grounds that Ld. Trial Court has committed a grave error in stopping the proceedings against the accused persons and acquitted them specifically when the accused persons were not inclined to make the payment. It is submitted that Ld. Trial Court has exceeded its jurisdiction and acted as Executing Court for Income Tax Authority. It is stated in the revision petition that Ld. Trial Court Could have continued with the complaint of the revisionist company when the respondents have declined to make the credit payment. It is submitted that certain demands were raised by the Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 5 of 8 Income Tax Authority against the revisionist while making the assessment for the assessment year 2011-2012 vide assessment order dated 29.03.2014. The revisionist company had filed an appeal against the said order before the Commissioner of Income Tax (Appeals) which was decided vide order dated 31.03.2016.
6. The revisionist has filed 2nd appeal before the Income Tax Appellate Tribunal against the order dated 31.03.2016 which was allowed by the Income Tax Appellate Tribunal vide its judgment dated 12.09.2017 and the demand being raised by the Income Tax Authority was quashed. It is submitted that Ld. Trial Court has not considered these facts. It is submitted that Ld. Trial Court has acted in haste. The prayer has been made accordingly for setting aside the impugned order.
7. I have heard Ld. Counsel for revisionist as well as Ld. Counsel for respondents and given my thoughtful consideration the the submissions as made by the them. I also considered the record.
8. I have perused the impugned orders of the Ld. Trial Court dated 15.03.2018 being passed in both the complaint cases. The Ld. Trial Court has observed in its orders as "since the entire payment has been made by the accused Society the proceedings under the present complaint stands stopped U/s 258 Cr.PC". The Ld. Trial Court, thereafter, acquitted the respondents and discharged the sureties. The Ld. Trial Court vide its impugned orders has also directed the revisionist to return Rs. 10 Lacs being already received by the revisionist within one month and also further directed its Ahlmad to sent the demand draft bearing no. 286981 dated 13.03.2016 for a sum Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 6 of 8 of Rs. 23 Lacs drawn on Bank of India and demand draft bearing no. 286980 dated 13.03.2016 for a sum of Rs. 5 Lac drawn on Bank of India, being brought by the respondents for handing over to the revisionist, to the office of Deputy Commissioner of Income Tax Authority by hand.
9. So, on perusal of impugned orders of Ld. Trial Court it reveals that the Ld. Trial Court has recorded the acquittal of the respondents in both the complaint cases bearing no. 15963/16 and 15964/16. The orders of return of sum of Rs. 10 Lac and giving directions to the Ahlmad to deposit the demand drafts for Rs. 23 Lacs and Rs. 5 Lacs respectively, is envisaged in the judgments of acquittal itself. The law is settled whether an appeal or revision lies against the acquittal for the offence U/s 138 N. I. Act before the Session Court or appeal lies before the Hon'ble High Court. The reliance can be placed upon the judgment of the Hon'ble High Court of Delhi in case titled as Bhajanpura Co-operative Urban Thrift and Credit Society Ltd. Vs. Sushil Kumar Crl. A. Nos. 972/12 and 1163/12 decided on 03.09.2014 in which Hon'ble High Court has given observation as "Considering all the relevant provisions, I am of the considered view that the remedy available to the complainants U/s 138 N.I Act against order of acquittal is only to seek special leave before filing an appeal U/s 378 (4) Cr.PC before the High Court."
10. The Hon'ble Kerela High Court has also in a latest bench judgment in Omana Jose Vs. State of Kerala ILR 2014 (2) Kerela 669 decided on 11.04.2014 on reference of Criminal revision petitions has observed "for the aforesaid reasons we hold that the complainant in a case U/s 138 of the Negotiable Instrument Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 7 of 8 the Cr.PC and his remedies is only to file an appeal to the High Court with special leave U/s 378 (4) Cr.PC."
11. The revisionist has preferred the revision petitions against the acquittals of respondents in both the complaint cases through the present revision petitions. The acquittal of the respondents is the final order against which an appeal lies and no revision is maintainable. The direction for returning of Rs. 10 Lacs and direction to the Ahlmad for depositing the two demand drafts of Rs. 23 Lac and Rs. 5 Lac, being brought by the respondents for handing over to the revisionist, are also the integral part of the acquittal order being recorded by the Ld. Trial Court in both the complaint cases. Accordingly, the revision petition bearing no. 104/18 and 114/18 are dismissed, however, the revisionist may approach the Hon'ble High Court under the purview of law for any relief.
12. Let copy of this judgment be placed in both the revision files. Both the revision files be consigned to record room. The Trial Court record be sent back along with copy of the order.
Digitally signedJAGDISH by JAGDISH KUMAR ANNOUNCED IN THE OPEN KUMAR Date: 2018.05.04 COURT ON THIS 03.05.2018 15:07:05 +0530 (JAGDISH KUMAR ) ADDITIONAL SESSIONS JUDGE-02 (WEST):DELHI Cr. Rev. No.104/18 & 114/18 M/s C.R. & Sons Associates Vs Lovely Home Co-operative Group & Ors. Page 8 of 8