Delhi District Court
P.N. Khanna vs State (Nct Of Delhi) on 24 November, 2018
IN THE COURT OF SHRI SANJEEV KUMAR II,
ADDITIONAL SESSION JUDGE05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO. 145/2018
IN THE MATTER OF:
1. P.N. Khanna,
Son of Shri PL Khanna,
Permanent Address MA23, DLF PhaseIII,
Molsary Avenue,
Gurugram
2. Ms. Anju Khanna,
Wife of Shri P.N. Khanna
Permanent Address MA23, DLF PhaseIII,
Molsary Avenue,
Gurugram ........Revisionists
VERSUS
1. State (NCT of Delhi)
Through the Public Prosecutor
Saket District Court, Delhi
2. Mr. Akash Gandhi
Resident of C 680, New Friends Colony,
New Delhi
Through Special Power of Attorney Holder
Ms. Veena Gandhi .......Respondents
Date of institution : 23.02.2018
Date of arguments : 27.10.2018
Date of order : 24.11.2018
CR No. 145/2018 P.N. Khanna & Anr. v. State & Anr. Page No. 1 of 7
JUDGMENT
This criminal revision has been filed by the revisionist under Section 397 read with Section 399 of the Code of Criminal Procedure, 1973 (in short 'Code') against the impugned order dated 16.01.2018 passed by the learned Metropolitan Magistrate (NI Act02), South East District, Saket Courts, New Delhi in the CC No. 626894/16 titled as "Akash Gandhi v. Adigear International & Ors." whereby application for discharge moved by the revisionists herein was dismissed.
2. Learned counsel appearing for the revisionistsaccused persons has submitted that accused persons have right to be heard at the stage of framing of notice under Section 251 of the Code and accused can be discharged at that stage. In Amit Sibal v. Arvind Kejriwal and Ors., (2018) 12 SCC 165, Hon'ble Supreme Court has passed consented order because both the parties were agreed for the same. The learned trial court had committed grave error in holding that power of discharge is not with the court at the stage under Section 251 of the Code. The revisionist were retired from partnership firm w.e.f. 31.03.2012 and they were not the partners of the accusedpartnership firm at the time when the alleged offence was committed and therefore, no offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (N.I. Act) could be made against the revisionists. The revisionists have not signed the cheque in question. Averments in the complaint regarding revisionists are not sufficient to make them accused for the CR No. 145/2018 P.N. Khanna & Anr. v. State & Anr. Page No. 2 of 7 said offence. Civil suit has also been filed by the respondent but the revisionist were not made party in that suit. The revisionists had filed application for discharge and not against the summoning order. Learned counsel relied upon the decisions namely Bhushan Kumar v. State NCT Delhi (2012) 5 SCC 424 ; Urrshila Kerkar vs. Make My Trip (India) Private Ltd. (2013) SCC Online Del 4563; S.K. Bhalla v. State & Ors., 180 (2011) DLT 219 ; Gajendra Nagpal v. Jagdeep Bhatia & Ors., 2016 (229) DLT (CN A) 14 ; Amit Sibal v. Arvind Kejriwal (2018) 12 SCC 165 ; NSIC v. Harmeet Singh & Ors., (2010) 3 SCC 330, Saroj Kumar Poddar v. State NCT of Delhi, (2007) 3 SCC 693 ; Ashok Mal Bafna v. M/s. Upper India Steel Mfg. & Engg. Co. Ltd. (2017) SCC Online SC 705 ; B.T Gokhale v. State & Anrs. (2012) 1 DCR 60.
3. On the other hand, Learned counsel appearing for the respondent no. 2/complainant has opposed the revision stating that revisionists should have approached before Hon'ble Delhi High Court under Section 482 of the Code as per Judgment of Hon'ble Supreme Court passed in Adalat Prasad v. Roop Lal Jindal. There are specific allegations in the complaint against the revisionist. The transaction happened between the parties 11.08.2012 but date of retirement of the revisionist are 24.08.2012.
4. Respondent no. 2complainant has filed complaint under Section 138 of the NI Act against the revisionistaccused & Others. After CR No. 145/2018 P.N. Khanna & Anr. v. State & Anr. Page No. 3 of 7 presummoning evidence, revisionists and others were summoned for the offence under Section 138 of the NI Act. By impugned order dated 16.01.2018, application for discharge moved by the revisionists herein was dismissed. The said application for discharge was filed after summoning of the revisionist and same was disposed off on 16.01.2018 before framing of notice under Section 251 of the Code. Said notice under Section 251 of the Code for the offence under Section 138 of N.I. Act was framed on 11.07.2018 by the learned trial court against the revisionists.
5. The power of revision under Section 397 of the Code can be exercised by the Revisional Court for the purpose of satisfying itself or himself as to correctness, legality or propriety of any finding, sentence or order, and as to the regularity of any proceedings of inferior court.
6. In the present revision, revisionist is challenging the impugned order dated 16.01.2018 whereby application for discharge of the revisionist was dismissed before framing of notice. Notice under Section 251 of the Code for the offence under Section 138 of N.I. Act was framed against revisionists on 11.07.2018. Now, question is as to whether at the stage of framing of notice under Section 251 of the code or prior to framing of notice, accused can be discharged by the learned trial Court.
7. In Amit Sibal's case (supra), Hon'ble Supreme Court had set CR No. 145/2018 P.N. Khanna & Anr. v. State & Anr. Page No. 4 of 7 aside order of Hon'ble Delhi High Court. Hon'ble Delhi High Court after considering the Judgment of Bhushan Kumar's case (supra) held that the Magistrate shall be empowered to discharge/drop the proceedings at the stage of framing notice under Section 251 of the Code, if no case is made out. Hon'ble Supreme Court had accepted the contention of learned counsel for the appellant that in a complaint case where summoning order has been issued and no charge is to be framed and, the order permitting the respondents to raise such contentions at the stage of framing of notice and directing the magistrate to consider the same and pass appropriate order is contrary to law. I am not agree with the contention of learned counsel for revisionist that in this case consensual/consented order was passed by the Hon'ble Supreme Court. In this regard, learned trial court has rightly observed in the impugned order that it is effectively implicit in the order of Hon'ble Apex Court that trial courts do not have the power to discharge the accused in a summons case at the stage of framing of notice.
8. In John Thomas v. Dr. K. Jagadeesan, Appeal (Crl.) 688 of 2001 decided on 12.07.2001, Hon'ble Supreme Court observed that offence under Section 500 IPC is triable as a summons case in accordance with the provisions contained in Chapter XX of the Code. Sections 251 to 256 of that Chapter deal with steps to be adopted from the commencement up to culmination of the proceedings in summons case. One of the normal rules in summons case is that once trial started it should reach its normal culmination. It was also observed that summons CR No. 145/2018 P.N. Khanna & Anr. v. State & Anr. Page No. 5 of 7 cases are generally of two categories i.e. those instituted upon complaints and those instituted otherwise than upon complaints; that the latter category would include cases based on police records; that Section 258 of the Code is intended to cover those cases belonging to one category alone i.e. "summons cases instituted otherwise than upon complaints"; that Section 258 of the Code has no application to cases instituted upon complaints.
9. In Subramanium Sethuraman v. State of Maharashtra and Anr., Appeal (crl.) 1253 of 2002 decided on 17.09.2004, Hon'ble three Judge bench of Hon'ble Supreme Court observed that the case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case.
10. In R.K. Aggarwal & Ors. v. Madan Lal Nassa & Ors., MANU/DE/2529/2016, Hon'ble Delhi High Court observed on 13.06.2016 that there is no stage of discharge in a summons case and under chapter XX of the Code, after filing a private complaint, in a summons case, the accused is either convicted or acquitted and there is no stage of discharge of an accused at any stage under Chapter XX of the Code.
11. In view of above mentioned judgments of Hon'ble Supreme Court/Hon'ble Delhi High Court, it can be said that in summon trial case, CR No. 145/2018 P.N. Khanna & Anr. v. State & Anr. Page No. 6 of 7 at the stage of framing of notice under Section 251 of the Code or after summoning and prior to framing of notice, trial court can not discharge the accused. Hence, learned trial court has rightly dismissed the application of the revisionist for discharge. Revision is dismissed accordingly.
Announced in the open Court on 24.11.2018 (Sanjeev KumarII) Additional Session Judge05, South East, Saket Courts, New Delhi CR No. 145/2018 P.N. Khanna & Anr. v. State & Anr. Page No. 7 of 7