Delhi District Court
Nasser Mohammed M.F. Ai-Hajri vs Bharat Bhushan Bansal on 29 January, 2016
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS JUDGE
(3) , PATIALA HOUSE COURT, NEW DELHI
Criminal Rev. No.122 to 145 of 2015 (24 revision petitions)
IN THE MATTER OF :
In CC no. 816/14; 817/1/14; 818/1/14;
819/1/14; 820/1/14; 821/1/14; 822/1/14;
823/1/14; 824/1/14; and 825/1/14
Nasser Mohammed M.F. AI-Hajri
.. . Revisionist
Versus
Bharat Bhushan Bansal
...Respondent/Complainant
In CC no.816/1/14; 817/1/14; 818/1/14;
822/1/14; 823/1/14; 824/1/14; and 825/1/14
Khaled Abdelrahman Radi
... Revisionist
Versus
Bharat Bhushan Bansal
... Respondent/Complainant
In CC no.816/1/14; 817/1/14; 818/1/14;
822/1/14; 823/1/14; 824/1/14; and 825/1/14
Fadi EI Jaouni
... Revisionist
Versus
Bharat Bhushan Bansal
... Respondent/Complainant
29.01.2016
ORDER
1. By this common order I shall dispose of 24 revision petitions filed against the common order dated 15.09.2015 passed in above noted complaint cases against all the three revisionists passed by Id. MM, New Delhi (hereafter referred as impugned order) whereby Id. Trial Court 1 issued summon to the revisionists namely 1.Nasser Mohammed M.F. AI-
Hajri; 2.Khaled Abdelrahman Radi; and 3.Fadi EI Jaouni for the offence u/s 138 N I Act.
2. The brief facts of the cases are that complainant/ respondent has filed above noted complaint cases u/s 138/ 142 N I Act 1881 against the revisionists and other accused persons. The pre-summoning evidence was recorded by ld. Trial court and thereafter vide order dated 20.09.2014, revisionists and other accused persons were summoned for the offence u/s 138 N I Act. This order was challenged before ld.
Sessions Court. Sh. D K Sharma, Ld. ASJ set aside the order dated 20.09.2014 and remanded back the case to the court of ld. Trial Court, vide order dated 11.03.2015 of ld. ASJ to consider again observing as follows:-
"5.Article 227 of the Constitution of India confers power of superintendence on Hon'ble High Court over all subordinate Courts of Delhi. All the District Courts in Delhi are bound to follow the directions of Hon'ble High Court in letter and spirit.
6.Since admittedly, the directions laid down in Paragraph No. 9 to 11 in Sudeep Jain Vs. ECE Industries (Supra) have not been followed, the impugned order suffers from basic defect and cannot be sustained in the eyes of law qua the present petitioner.
7.It is pertinent to mention here that impugned order has been assailed on several other grounds, however, this Court has not examined validity of the impugned order on other grounds. Therefore, the petitioner and the respondent shall be at liberty to assail and protect the findings of Ld. Metropolitan Magistrate, arrived at after following the mandate laid down in Sudeep Jain Vs. ECE Industries (Supra) as per the law.
8.In these circumstances, the impugned order qua the petitioner is set aside and matter is remanded back to the Ld. Metropolitan Magistrate with the direction to seek the information as provided in Paragraph no. 9 and 10 of 2 Sudeep Jain Vs. ECE Industries (Supra) case, and consider the case, thereafter, for summoning as per law.
With these observations, the matter is remanded back to Ld. Metropolitan Magistrate with the direction to proceed as per Law and the revision petition stands disposed of.
The parties are directed to appear before Ld. Trial Court on the date fixed.
9.Trial Court Record be sent back to the Ld. Trial Court. ............."
3. Ld. Trial Court after considering the case and material available on record issued summons to the revisionists and other accused persons, vide orders dated 19.09.2014, 20.09.2014 and 22.09.2014, against which ld. Counsel for the revisionists again moved before ld. ASJ Sh. D K Sharma and once again summoning orders were set aside and case was remanded back to the ld. Trial Court, observing in its order dated 18.04.2015 as follows:-
"36.Perusal of the trial court record indicates that the complainant had filed the reply, sent by the petitioners in response to the legal notice served upon them. In the said legal reply, the petitioners specifically stated that they were merely appointed as Non Executive Directors and were not involved in the day to day management and affairs of the company. In view of such clear averment made by the petitioners in their reply to the notice, Ld. Metropolitan Magistrate could have made inquiry from the complainant as to the role and responsibility of the petitioners in the management and conduct of the business of the accused company.
37.The petitioners have specifically stated that they were working with M/s. Hassad Netherlands B.V. It is also pertinent to mention here that one of the petitioners Mr. Nasser Mohammad MF Al-Hajri is a State Minister in Qatar. Therefore, merely because M/s. Hassad Netherlands B.V., who had invested huge amount of money in the accused company, it cannot be presumed that the petitioners were controlling the affairs of the accused company.
38.Therefore, in view of this discussion made above and the clear position of law as laid down in three Judge Bench of the Hon'ble Supreme Court in SMS Pharma -(I), I consider that Ld. Metropolitan Magistrate has summoned the petitioners mechanically without going through the material on record, which does not indicate in any manner that the petitioners were in charge and were responsible for the conduct of the business of the company, and therefore, the impugned order is liable to be set aside qua the petitioners. Hence, the revision petitions are allowed......"3
4. Thereafter, at third time ld. Trial court again gone through the case file and material available on record issued summons to the revisionists vide order dated 09.04.2015. Being not satisfied with the summoning order dated 09.04.2015 ld. Counsel for the revisionists again moved before ld.
ASJ Court and order dated 09.04.2015 was got set aside and case was remanded back by Ms. Anju Bajaj Chandna, Ld. Spl. Judge (PC Act) (CBI)06, vide order dated 07.08.2015 making observations that:-
"..........In view of the above discussions, the impugned order cannot be sustained and therefore set aside and it is impressed upon Ld. MM to reconsider the facts and the records of the case and to give reasons, in case, he prefers to summon the petitioners in the complaint case. The revisions are disposed off with the above said directions".
5. Ld. Trial Court once again after perusal of the case file and case law and material available on record issued summons to the revisionists observing as follows:-
"15.09.2015 Present: Sh. Asit Tiwari, Ld. Counsel for complainant alongwith complainant in person. Sh. A.Q. Bhatt, Sh. Nadim Abbasi and Sh. Gurpreet Singh, Ld. Counsel for accused no.2.
Sh. Rahul, Ld. Counsel for accused no.3 alongwith accused no.3 in person.
File perused.
Vide order dated 07.08.2015, the Ld. Revisionist Court has set aside the order dated 09.04.2015, passed by this court, vide which the accused no.4, 5 & 6 were summoned. The revision petition has been disposed with the following directions:
"In view of the above discussions, the impugned order cannot be sustained and therefore set aside and it is impressed upon Ld. MM to reconsider the facts and the records of the case and to give reasons, in case, he prefers to summon the petitioners in the complaint case. The revisions are disposed off with the above said directions".
Therefore, the order vide which the accused persons have been summoned has been set aside and it has been 4 directed by Ld. Revisionist Court to reconsider the facts and the records of the case and to pass speaking order, in case the accused persons are summoned. It is pertinent to mention here that the summoning order has been quashed only qua accused no.4,5 & 6 i.e. Naseer Mohd. MF Al Hajri, Fadi El Jaouni and Khaled Abdelrahman, respectively.
Ld. Counsel for the complainant has submitted that there is sufficient material on record to summon accused no.4,5 & 6 afresh. Ld. Counsel for the complainant has drawn attention of this court to para 2 & 7 of the complaint and submitted that there are specific allegations against the accused persons so as to issue summon against them. Moreover, Form 32 of accused no.1 company is on record which further shows that the accused no.4,5 & 6 were and are still continuing as Directors of accused no.1 company, and thus are liable to be summoned. Ld. Counsel has further submitted that in compliance of the orders of Hon'ble High Court passed in Sudeep Jain Vs. ECE Industires, 201 (2013) DLT 461, necessary information has already been furnished and hence, all the accused persons be summoned to face trial for offence u/s 138 of N.I. Act.
Arguments heard and file perused.
A bare perusal of the complaint shows that there are clear allegations against all the accused persons including accused no.4,5 & 6.
The relevant portion of the complaint is reproduced hereunder:
" Para 2: .............Apart from accused Nos.2 and 3, the accused Nos.4 to 7 are also liable for day to day affairs of the company and are solely responsible for the dishonour of the said cheques in question as the same have duly been signed by accused Nos.2 and 3, on behalf of accused No.1, of which accused Nos.4 to 6 are also the Additional Directors and accused No.7 is the Secretary and looking after the day to day affairs of the company i.e. accused No.1. Accused no.1 company is engaged in the business of Export of the goods i.e. Rice and accused Nos.4 to 6 are looking after the affairs of accused No.1 company at QATAR and as such are jointly and severally responsible for the dishonour of the cheques in question.
Para7: ................All the accused Nos.2 to 7 in connivance and active collusion with each other issued the cheques in question, alongwith number of other cheques, worth about Rs.7,00,00,000/ and intentionally issued the said cheques, in order to cheat and defraud the complainant, with malafide intentions and not making the payment and the cheques issued by the accused persons are being dishonoured one by one, for one reason or the other. ".
Hence, there are clear allegations against all accused persons including accused no.4,5 & 6, prima facie which 5 shows that these accused persons are involved in the day to day affairs of accused no.1 company. Moreover, Form 32 of the accused no.1 company which is already on record also shows accused no.4,5 & 6 as Promoters/Directors of accused no.1. Furthermore, in compliance of judgment of Hon'ble High Court in Sudeep Jain Vs. ECE Industries (supra) and also the orders passed by Ld. Revisionist Court vide order dated 11.03.2015, necessary intimation qua all the accused persons have already been furnished. Since this information has been filed in pursuance of the orders passed by Ld. Revisionist Court and effectively before the order dated 09.04.2015 vide which the accused persons were summoned by this court, this information stood part of the complaint. This information also clearly evinces the role being played by the accused persons including accused no.4,5 & 6.
After going through the record and in view of the above discussions, this court is convinced that there are sufficient allegations against accused no.4,5 & 6 and prima facie it appears that accused no.4,5 & 6 were the directors/ promoters of accused no.1 at the relevant point of time. Hence, accused no.4,5 & 6 are hereby summoned for an offence u/s 138 of N.I. Act.
Accordingly, fresh summons be issued against accused no.4,5 & 6 on filing PF within 10 days, for 02.11.2015........"
6. Again feeling aggrieved with the impugned order dated 15.09.2015, ld.
Counsel for the revisionists filed the present revision petition.
7. Arguments were heard at length. I have also perused the written submissions. During the course of arguments Ld. Counsel for the revisionists submitted that earlier on two occasions revision petitions were allowed. He further submitted that prior to this similar orders were passed by this court in a connected matter. He further submitted that also another Ld. ASJ has also passed similar orders in other connected matters. He further submitted that by virtue of Section 142 (2) of the NI Act the revision petition be allowed as the Act has been made retrospectively effective from dated 15.06.2015 and therefore the Ld. MM did not have jurisdiction to pass the impugned order subsequent to 6 15.06.2015. On these grounds he submitted that the revision petition be allowed. Apart from this he has relied upon the citation i.e, M/s Bridgestone India Pvt. Ltd. Vs. Inderpal Singh, CA No. 1557 of 2015 wherein sub para 4 of para 10 is relevant. On the strength of the aforesaid citations he again submitted that the appeal be allowed.
8. Contrary to the contentions of Ld. counsel for the revisionists, ld counsel for the respondent submitted that by virtue of Section 190 Cr.P.C r/w 468 Cr.P.C, the Ld. MM is competent enough to issue process against the revisionist. He further submitted that by virtue of Amendment Act, 2015 Section 138 and Section 142 (2) of the NI Act has been made applicable retrospectively w.e.f. 15.06.2015. He further submitted that the complaint in this case was filed by the respondent in the year 2013 -
2014. He further submitted that case of the revisionist is not covered under Section 142 (2) of the NI Act. He further submitted that in view of the orders passed by this court in the revision petition vide which the order of the Ld. MM was set aside on the ground that no role has been assigned to the Directors/ Employee of the company, therefore, having being complied with these aspects of the revision petition, the cognizance has been taken and summons have been issued vide order dated 15.09.2015. On these grounds he submitted that the revision petition is liable to be dismissed. In support of his contentions he has relied upon the following citations:-
1. K.M.Mathew Vs. State of Kerala & Anr., 1991 STPL 7534 SC, in this case it has been observed that:-7
"HELD: 1. The power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime., If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.
2. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is : his judicial discrction
3. No specific provision required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order: and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of its does not disclose any offence against the accused.
4. Section 7 of the Press and Registration of Books Act, 1867 has no applicability for a person who is simply named as 'Chief Editor'. 'The presumption under Section7 is only against the person whose name is printed as 'Editor' as required under Section 5(1). There is a mandatory (though rebuttable) presumption that the person whose name is printed as 'editor' is the editor of every portion of that issue of the newspaper of which a copy is produccd.
The Act does not recognize any: other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper there is no Presumption against him under Section 7 of the Act.
5. No person should be tried without a prima ficie case. For a Magistrate to take congnizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with....."
2. U.P. Pollution Control Board Vs. M/s Mohan Meakin Ltd. & Ors, 2000 STPL 4497 SC, in this case it has also been observed that:-
8".........In the above context what is to be looked at during the stage of issuing process is whether there are allegations in the complaint by which the Managers or Directors of the company can also be proceeded against, when the company is alleged to be guilty of the offence. Paragraph 12 of the complaint reads thus:
"That the accused persons from 2 to 11 are directors/managers/partners of M/s. Mohan Meakins Distillery, Daliganj, Lucknow, as mentioned in this complaint are responsible for constructing the proper works and plant for the treatment of their highly polluting trade effluent so as to conform the standard laid down by the Board. Aforesaid accused persons are deliberately avoiding to abide the provisions of sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the aforesaid Act, for which not only the company but its directors, managers, secretary and all other responsible officers of the accused company, responsible for the conduct of its business are also liable in accordance with the provision of the Section 47 of the Act."
The appellant has further stated in paragraph 23 of the complaint that "the Chairman, Managing Directors and Directors of the company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law."
Shri P.Chidambaram, learned senior counsel who argued for respondents made a fervent plea to rescue the Directors of the company on the ground of lapse of a long time now since the institution of the complaint. Lapse of seventeen years is no doubt considerable, but the Board is not the least to be blamed for it. Since it is not a pleasant task to probe into the causes which contributed for such a long delay we choose to refrain from doing that exercise. Nonetheless, lapse of such long period cannot be a reason to absolve the respondents from the trial. It must reach its logical culmination. Courts cannot afford to lightly deal with cases involving pollution of air and water. The message must go to all concerned. The courts will share the parliamentary concern on the escalating pollution level of our environment. Those who discharge noxious polluting effluents to streams may be unconcerned about the enormity of the injury which it inflicts on the public health at large, the irreparable impairment it causes on the aquatic organisms, the deleteriousness it imposes on the life and health of animals. So the courts should not deal with the prosecution for offences under the Act in a casual or routine manner. Parliamentary concern in the matter is adequately reflected in strengthening the measures prescribed by the statute. The court has no justification for ignoring the seriousness of the subject. We are, therefore, not inclined to accede to the plea made by Shri Chidambaram on the ground of lapse of long period now. Of course this lapse of long period is a good reason for expediting the trial. Now the deck is clear and hence the trial court can proceed with faster pace and accelerated velocity.
9If any of the accused applies for dispensing with his personal presence in the court, after making the first appearance, the trial court can exempt him from continuing to appear in the court by imposing any condition which the court deems fit. Such conditions can include, inter alia, that a counsel on his behalf would be present when the case is called, that he would not dispute his identity as the particular accused in the case, and that he would be present in court when such presence is imperatively needed.
Subject to the above observations, we set aside the impugned judgment of the High Court as well as the order of the Sessions Court. We direct the trial court to proceed with the case in accordance with law and dispose it of as expeditiously as possible."
3. Trisuns Chemical Industry Vs. Rakesh Agarwal & Ors., 1999 STPL 9967 SC, in this case it has also been observed that:-
"............It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts in enquiries and trials. That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. But section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court within whose local jurisdiction such thing has been done or such consequence has ensued.. It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. Power of the court to take cognizance of the offence is laid in Section 190 of the Code. Sub-sections (1)& (2) read thus: (i) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon a police report of such facts;
(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(ii) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
Section 193 imposes a restriction on the court of sessions to take cognizance of any offence as a court of original jurisdiction. But any Magistrate of the First Class has the 10 power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not. The only restriction contained in Section 190 is that the power to take cognizance is subject to the provisions of this Chapter. There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: Except as hereinafter provided. Those words are now replaced by Subject to the provisions of this chapter. Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non-obstante clauses. Any way that is a different matter. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier. Unfortunately, the High Court, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the judicial magistrate of first class, Gandhidham has no power to take cognizance of the offences alleged merely because such offences could have been committed outside the territorial limits of the State of Gujarat. Even otherwise, without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by the High Court at a grossly premature stage as this. For all the aforesaid reasons we are unable to concur with the impugned judgment. We, therefore, quash it. Learned counsel for the respondents invited our attention to the fact that all the accused persons arrayed in the complaint are residing at Indore in Madhya Pradesh and he apprehends that revival of investigation in the case would most probably embroil them in a miserable position if they are arrested. We considered that aspect in the view we now take and we also foresee such a plight for the accused. To alleviate any possible hardship for the respondents we direct that if any of the respondents is arrested in connection with the above complaint, he shall be released on bail by the arresting officer on execution of a bond to his satisfaction. However, such arrested person shall be bound to report to the investigating officer at the place and time specified for the purpose of interrogation.
The appeal is disposed of in the above terms."
11On the strength of the above said citations he again prays that the revision petition is liable to be dismissed.
9. Controverting the contentions of Ld. counsel for the respondent, Ld. counsel for the revisionists submitted that there is a distinction between the issuance of process and taking cognizance under Section 190 r/w Section 204 Cr. P.C and in this regard he has relied upon the following citations:
1. S. K. Sinha, Chief Enforcement Office Vs. Videocon International Ltd. & Ors., Crl. Appeal No. 175 of 2007, in this case it has been observed that:-
"............14. Then comes Chapter XVI (Commencement of proceedings before Magistrates). This Chapter will apply only after cognizance of an offence has been taken by a Magistrate under Chapter XIV. Section 204, whereunder process can be issued, is another material provision which reads as under:
204.Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-
section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
15. From the above scheme of the Code, in our judgment, it is clear that Initiation of Proceedings, dealt with in Chapter XIV, is different from Commencement of Proceedings covered by Chapter XVI. For commencement of proceedings, there must be initiation 12 of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI.
20. Again in Narayandas Bhagwandas Madhavdas v. State of West Bengal, (1960) 1 SCR 93, this Court observed that when cognizance is taken of an offence depends upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuance of a search warrant for the purpose of an investigation or a warrant of arrest of accused cannot by itself be regarded as an act of taking cognizance of an offence. It is only when a Magistrate applies his mind for proceeding under Section 200 and subsequent sections of Chapter XV or under Section 204 of Chapter XVI of the Code that it can be positively stated that he had applied his mind and thereby had taken cognizance of an offence [see also Ajit Kumar Palit v. State of W.B. & Anr., (1963) Supp (1) SCR 953; Hareram Satpathy v. Tikaram Agarwala & Anr., (1978) 4 SCC 58].
21. In Gopal Das Sindhi & Ors. v. State of Assam & Anr., AIR 1961 SC 986, referring to earlier judgments, this Court said: We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word may in Section 190 to mean must. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code.
22. In Nirmaljit Singh Hoon v. State of West Bengal & Anr., (1973) 3 SCC 753, the Court stated that it is well settled that before a Magistrate can be said to have taken cognizance of an offence under Section 190(1) (a) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200 and the provisions following that section. Where, however, he applies his mind only for ordering an investigation under Section 156(3) or issues a warrant for arrest of accused, he cannot be said to have taken cognizance of the offence.
This raises the incidental question : What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190?. This expression has 13 not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. [see also M.L. Sethi v. R.P. Kapur & Anr., (1967) 1 SCR 520].
28. The learned counsel for the respondent, on the other hand, tried to distinguish Bharat Damodar Kale and Japani Sahoo submitting that in both the decisions, this Court was called upon to consider, inter alia, Section 468 of the Code providing for limitation for taking cognizance of certain offences. According to the counsel, Section 468 of the Code starts with the expression Except as provided elsewhere in this Code. Section 49(3) of FEMA, on the other hand, starts with a non-obstante clause (Notwithstanding anything contained in any other law for the time being in force). It was, therefore, submitted that the ratio laid down in the above two cases would not be applicable to the instant case.
29. In our opinion, it would not be necessary for us to express any opinion one way or the other on the larger question. We have already held in the earlier part of the judgment that in the case on hand, cognizance of an offence had already been taken by the Chief Metropolitan Magistrate, Mumbai on May 24, 2002, well within the period prescribed by sub-section (3) of Section 49 of FEMA within two years of coming into force of the Act from June 1, 2000. We, therefore, express no opinion on the question raised by the learned counsel for the respondent.
30. As regards quashing of proceedings on merits, the learned counsel for the appellant is right in submitting that the High Court has not at all touched the merits of the case and proceedings were not quashed on the ground that the provisions of FERA do not apply to the case before the Court. The High Court dealt with only one point as to whether the proceedings were liable to be quashed on the ground that they were time-barred and upholding the contention of the accused, passed the impugned order. As we are of the view that the High Court was not 14 right in quashing the proceedings on the ground of limitation, the order deserves to be set aside by remitting the matter to the Chief Metropolitan Magistrate, Mumbai to be decided in accordance with law. We may, however, clarify that it is open to the respondents to take all contentions including the contention as to applicability or otherwise of FERA to the facts of the case. As and when such question will be raised, the Court will pass an appropriate order in accordance with law.
31. For the foregoing reasons, the appeal is allowed. The order passed by the High Court is set aside and it is held that cognizance of the offence had already been taken by the competent Criminal Court i.e. Chief Metropolitan Magistrate, Mumbai on May 24, 2002 and it could not be said that the proceedings were barred by Section 49(3) of FEMA. The Chief Metropolitan Magistrate will now proceed to consider the matter in accordance with law. All contentions of all parties are kept open except the one decided by us in this appeal. Since the matter is very old, the Court will give priority and will decide it as expeditiously as possible, preferably before June 30, 2008.
32. Ordered accordingly."
2. CREF Finance Ltd. Vs. Shree Shanthi Homes Pvt. Ltd. & Anr., Crl. Appeal No. 1063 of 2005.
"..............In Ajit Kumar Palit vs. State of West Bengal, (1963) Supp. 1 SCR 953, this Court observed :-
"The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means
--- become aware of and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor (AIR 1943 Pat.245) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R.Chari v. State of Uttar Pradesh (1951 SCR 312, 320) that the word, `cognizance' was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckerbutty (1910 ILR 37 Cal.412, 416), "taking cognizance does not involve any formal action ; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence." Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled."
In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for 15 recording of statement of the complainant on 01.06.2000. Even if we assume, though that is not the case, that the words "cognizance taken" were not to be found in the order recorded by him on that date, in our view that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal. Counsel for the respondents submitted that the cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the company itself and the respondent No.2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques. He, therefore, submitted that the liability not being the personal liability of respondent No.2, he could not be prosecuted, and the Magistrate had erroneously issued process against him. We find no merit in the submission. At this stage, we do not wish to express any considered opinion on the argument advanced by him, but we are satisfied that so far as taking of cognizance is concerned, 16 in the facts and circumstances of this case, it has been taken properly after application of mind. The Magistrate issued process only after considering the material placed before him. We, therefore, find that the judgment and order of the High Court is unsustainable and must be set aside. This appeal is accordingly allowed and the impugned judgment and order of the High Court is set aside. The trial court will now proceed with the complaint in accordance with law from the stage at which the respondents took the matter to the High Court. Since the matter is already considerably delayed, it must be disposed of with promptitude. Counsel for the parties are present in Court and in their presence, we direct the parties to appear before the trial court on 19.9.2005 on which date the Court will give further directions. This appeal is allowed."
On these grounds and on the strength of the above said citations he again prays that the revision petition be allowed. Again in support of his contentions he has relied upon the following citations:-
1. Bhiku Ram Jain etc. v Municipal Corporation of Delhi and Ors. 1977 CriLJ 1995
2. Anisa Begum v Masoom Ali 30(1986) DLT 107
3. Mukhtar Ansari v Central Bureau of Investigation S.I.V. and Anr. 2000 CriLJ 68
4. Anjanappa v State of Karnataka and Anr. 1987(2) KarLJ 201
5. Bridgestone India Pvt. Ltd. v Inderpal Singh 2015(13) SCALE 155
6. Maru Ram and Ors. v Union of India (UOI) and Ors. (1981)1 SCC 107
7. Anil Kumar v Anil Sabharwal and Anr. (1985)87(1) PLR 454
8. Bijoyanand Patnaik v K.A.A. Brinnand AIR 1970 Cal 110
9. Rohit Motors and Ors. v Punjab Tractors Ltd. and Ors. 2010(2) JKJ 894
10. Smt. Dayawati and Anr. v Inderjit and Ors. AIR 1966 SC 1423
11. S.K. Sinha, Chief Enforcement Officer v Videocon International Ltd.
and Ors. (2008)2 SCC 492
12. CREF Finance Ltd. v Shree Shanthi Homes Pvt. Ltd. and Anr. (2005)7 SCC 467
13. Aneeta Hada v Godfather Travels (2012) 5 SCC 661
14. S.M.S. Pharmaceuticals Ltd. v Neeta Bhalla (2005)8 SCC 89
15. GHCL Employees Stock Option Trust v India Infoline Ltd (2013) 4 SCC 505
16. Pepsi Foods Ltd v Special Judicial Magistrate 1998 (5) SCC 749
17. Sudeep Jain v ECE Industries 111 (2013) BC 589
18. Pooja Ravinder Devidasani v State of Maharasthra AIR 2015 SC 675
19. National Small Industries Corporation Ltd. v Harmeet Singh Paintal and Anr. (2010) 3 SCC 330
20. Mukul Singhal and Vishal Satinder Sood v Curo India Pvt. Ltd. Cri.
Rev. Nos. 7 and 8 of 2014
21. Anita Malhotra v Apparel Export Promotion Council (2012)1 SCC 520
22. Naseer Mohammed M.F Al Hajri v Tarlok Chand C.R. 46 of 2015
23. Naseer Mohammed M.F Al Hajri v Anand Prakash Bansal C.R. 34 of 2015
24. Manish Parwani v NCT of Delhi (2010) ILR 5 Delhi 262 17
25. P. S. Shrinivasan v VLS Finance Ltd MANU/DE/2549/2008
26. G. N. Verma v State of Jharkhand AIR 2014 SC 3549
27. Gunmala Sales Pvt. Ltd. v. Anu Mehta (2015) 1 SCC 103
28. SR Sukumar v Sunaad Raghuram (2015)9 SCC 609
29. Linda John Abraham v Business India Group Company & Ors. 2011(4) KLT 787
30. National Bank of Oman v Barakara Abdul Aziz (2013) 2 SCC 488
31. Udai Shankar Awasthi v State of Uttar Pradesh (2013) 2 SCC 435
32. Jasminder Kaur v Raj Karan Singh MANU/PH/3239/2013
33. Shashi Kant Gupta v State of U.P. 2006 FAJ 129
34. Usman v Badarunisa and Ors. 2006(3) KLJ 739
35. Milind Chandurkar v Kalim M. Khan AIR 2011 SC 1588
36. Suresh Sharma v. New Coolwell Industries and Ors. 2009 CriLJ 4031
37. Arvind Kejriwal & Ors. v Amit Sibal 2015 CriLJ 215
38. Amit Sibal v Arvind Kejriwal & Ors. CRLMP.NO(s). 1831 of 2014
10. I have given careful consideration to the submissions of ld. counsel for the revisionists and ld. Counsel for the respondent as well. I have also perused the case file and impugned order dated 15.09.2015. I have also gone through the judgments as referred above. The main contention of ld. Counsel for the revisionists is that there is distinction between taking cognizance on complaint and issuance of process. I am of the view that taking of cognizance falls under section 190 Cr. PC while issuance of process falls under 204 Cr. PC. So long as section 190 Cr. PC is concerned, to my view this is a generic term with regard to the discovery of offence. So long as the issuance of process is concerned, it becomes specific u/s 204 Cr. PC in relation to the offence committed by any of the persons, which is punishable under the law. Therefore, taking cognizance of offence and issuance of process has wider relationship but not narrow likewise there is distinction between issuance of process and framing of charge. At the stage of issuance of process mere suspicion is sufficient therefore, I am of the view that to arrive for 18 the purpose of suspicion is the sole discretion of the ld. trial court. In 'Minu Kumari v. State of Bihar, (2006) 4 SCC 359', it has been observed that:-
"The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also."
11. In another judgment 'Awadhesh Prasad Singh aias Awadhesh Prasad Sharma v. State of Bihar, (1997) 3 Crimes 70 (Pat.), it has also been observed that :-
"Even after issue of process in summons case the accused can plead of absence of any triable case against him and the Magistrate, on being satisfied on reconsideration of the complaint, has discretionary power to order, dropping of the proceedings against the accused."
12. The material aspect of these revision petitions is that earlier ld. Trial court has passed the summoning order against the revisionists, which was set aside by Ld. ASJ vide order dated 20.09.2014 observing that:
"In these circumstances, the impugned order qua the petitioner is set aside and matter is remanded back to the Ld. Metropolitan Magistrate with the direction to seek the information as provided in Paragraph no. 9 and 10 of Sudeep Jain Vs. ECE Industries (Supra) case, and consider the case, thereafter, for summoning as per law. With these observations, the matter is remanded back to Ld. Metropolitan Magistrate with the direction to proceed as per Law and the revision petition stands disposed of." Again Trial Court passed summoning order. Further in the revision petition similar order was passed by ld. ASJ observing that: "In the said legal reply, the petitioners specifically stated that they were merely appointed as Non Executive Directors and were not involved in the day to day management and affairs of the company. In view of such clear 19 averment made by the petitioners in their reply to the notice, Ld. Metropolitan Magistrate could have made inquiry from the complainant as to the role and responsibility of the petitioners in the management and conduct of the business of the accused company.
................Therefore, in view of this discussion made above and the clear position of law as laid down in three Judge Bench of the Hon'ble Supreme Court in SMS Pharma -(I), I consider that Ld. Metropolitan Magistrate has summoned the petitioners mechanically without going through the material on record, which does not indicate in any manner that the petitioners were in charge and were responsible for the conduct of the business of the company, and therefore, the impugned order is liable to be set aside qua the petitioners.
Hence, the revision petitions are allowed......" Further, ld. Trial court passed summoning order and again in the revision, order was set aside by another Ld. Spl. Judge (PC Act) (CBI)06, vide order dated 07.08.2015 with the observations that "..........In view of the above discussions, the impugned order cannot be sustained and therefore set aside and it is impressed upon Ld. MM to reconsider the facts and the records of the case and to give reasons, in case, he prefers to summon the petitioners in the complaint case. The revisions are disposed off with the above said directions".
13. It is also pertinent to mention here that in the similar matters revisionists summoning order dated 05.12.2014 was set aside and cases were remanded back by this court vide order dated 26.11.2015 observing that : "Therefore, in light of the observations made in the above referred citations in the preceding paras, I am of the view that without highlighting the role of the individual revisionists the issuance of process impacts the fairness of the case. In light of these facts and circumstances of the case the impugned order dated 05.12.2014 is set aside in all 12 revision petitions no.45 to 57 of 2015 with the direction that ld. Trial Court shall pass fresh order in view of the judgment 'Sudeep Jain v. ECE Industries. ..."
2014. Having perused the whole case it reveals that role of revisionists has been intimated to the revisionists vide legal notice dated 10.01.2014 that "at the time of issuance of the aforesaid cheques in question the Noticees represented and assured that the said cheques were good for realization and further assured to my client that the said cheques would be duly encashed by your banker on presentation." However, in the legal reply, the revisionists specifically stated that they were merely appointed as Non Executive Directors and were not involved in the day to day management and affairs of the company. The defence of revisionists is not considerable at this stage since it can only be looked into during the course of trial since at the stage of issuance of summons only prima facie view merely on suspicion is sufficient by the court.
Therefore, role of revisionists with regard to the dishonouring of cheques in question is proximately connected with the other co-accused persons, those who have been summoned by the ld. Trial court. Undoubtedly, determination of the fact 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, ld. Trial court in the impugned order dated 15.09.2015 has specifically highlighted the role of the accused quoting relevant paras of the complaint such as : "Para 2: .............Apart from accused Nos.2 and 3, the accused Nos.4 to 7 are also liable for day to day affairs of the company and are solely responsible for the dishonour of the said cheques in question as the same have duly been signed by accused Nos.2 and 3, on behalf of accused No.1, of which accused Nos.4 to 6 are also the Additional Directors and accused No.7 is the Secretary and looking after the day to day affairs of the company i.e. accused No.1. Accused no.1 company is engaged in the business of Export of the goods i.e. Rice and accused Nos.4 to 6 are looking after the affairs of accused No.1 company at QATAR and as such are jointly and severally responsible for the dishonour of the cheques in question. Para7:
21................All the accused Nos.2 to 7 in connivance and active collusion with each other issued the cheques in question, alongwith number of other cheques, worth about Rs.7,00,00,000/ and intentionally issued the said cheques, in order to cheat and defraud the complainant, with malafide intentions and not making the payment and the cheques issued by the accused persons are being dishonoured one by one, for one reason or the other. ". Furthermore, in compliance of judgment of Hon'ble High Court in Sudeep Jain Vs. ECE Industries necessary intimation qua all the revisionists have already been furnished. This information also clearly evinces the role being played by the accused persons including revisionists.
15. So long as the contention of ld. Counsel for the revisionists with regard to the jurisdiction is concerned, in this regard I am of the view that Delhi Court has jurisdiction since cheques in question were issued in Delhi and presented in Delhi. However, revisionists have right to move transfer petition, either before Hon'ble High Court under section 407 Cr.PC or before the Sessions Court u/s 408 Cr. PC. Therefore, question of jurisdiction does not arise at this stage as the revisionists were summoned vide order dated 19.09.2014; 20.09.2014; and 22.09.2014 whereas the Negotiable Instruments (Amendment) Act, 2015 came into force w.e.f. 15.06.2015.
16. In view of these facts and circumstances of the case, citations as relied upon by the ld. Counsel for the revisionists are not applicable in view of the aforesaid reasons.
17. In light of the above discussed reasons and circumstances I am of the view that ld. Trial Court has rightly passed the impugned order dated 15.09.2015 and issued summons on finding prima facie case 22 against the revisionists. In view of this, I do not find any substance in the revision petitions at this stage. Thus, all 24 revision petitions are dismissed. Accordingly, 24 revision petitions stand disposed of. 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 29.01.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS / NEW DELHI 23 Criminal Rev. No.122 to 145 of 2015 (24 revision petitions) IN THE MATTER OF :
1.Nasser Mohammed M.F. AI-Hajri;
2.Khaled Abdelrahman Radi; and
3.Fadi EI Jaouni .. . Revisionist Versus Bharat Bhushan Bansal ...Respondent/Complainant 27.01.2016 ORDER Pre: Ld. APP for the State.
Proxy counsel for the revisionists.
None for the respondent.
Order not ready.
Put up for order on 29.01.2016.
(RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS / NEW DELHI 24 Criminal Rev. No.122 to 145 of 2015 (24 revision petitions) IN THE MATTER OF :
1.Nasser Mohammed M.F. AI-Hajri;
2.Khaled Abdelrahman Radi; and
3.Fadi EI Jaouni .. . Revisionist Versus Bharat Bhushan Bansal ...Respondent/Complainant 29.01.2016 ORDER Pre: Ld. APP for the State.
Proxy counsel for the revisionists.
None for the respondent.
Vide separate detailed common judgment / order placed along side in the file, 24 revision petitions by common order are dismissed. Accordingly, 24 revision petitions stand disposed of. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
Copy of this order be kept in all connected case file.
Parties are directed to appear before ld. Trial court on 15.02.2016.
(RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS / NEW DELHI 25