Delhi District Court
Yatinder Kumar vs M/S Neel Kanth Drugs Pvt. Ltd on 29 January, 2014
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01/SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision Nos. 158/2013, 159/2013, 160/2013 & 161/2013
Unique I.D. Nos. 02402R0-124242013, 124212013, 124222013 &
124202013
In the matter of :-
Yatinder Kumar . . . Revisionist
At 23, Mahar Chand Market
Lodhi Colony, New Delhi
Proprietor of M/s Life Line Medicos
VERSUS
M/s Neel Kanth Drugs Pvt. Ltd. . . . Respondent
At 500, Industrial Area
Patparganj, Delhi - 110 092
Date of Institution : 19/11/2013
Date of reserving order : 23/01/2014
Date of pronouncement : 29/01/2014
ORDER
This common order shall dispose of aforesaid four Criminal Revision Petitions filed U/s 397 r/w Sec. 401 Cr.P.C by the revisionist Yatinder Kumar against the impugned order dated 15/02/13 passed by Ld. Metropolitan Magistrate/East, Karkardooma Court, Delhi in complaint case No. 23129, U/s 138 N.I. Act titled as Neel Kanth Drugs Pvt Ltd v Life Line Medicos whereby amendment was allowed in the complaint filed by the respondent therein and also against the impugned order dated 24/08/12 whereby revisionist has been summoned.
Crl. Rev. Nos. 158/2013, 159/2013, 160/2013 & 161/2013 Page 1 of 62. Trial court record has been summoned and perused.
3. I have heard the submissions from Ld. Counsels for revisionist and respondent and gone through the record.
4. On behalf of the revisionist, it has been submitted by Ld. Counsel that Ld. Trial court has failed to consider and appreciate the basic law of Cr.P.C and N.I. Act and has wrongly exercised the power U/s 319 Cr.P.C; that the impugned order has been passed without issuing summons to the revisionist and without giving opportunity of being heard; that Ld. Trial court has wrongly relied on authority reported as C.C. Alavi Haji Vs. P. Mohammed (2007) 6 SCC 555; that the impugned order tantamount to re-summoning of accused which is barred. Ld. Trial court has failed to consider that the proprietorship firm has not a legal entity and cannot be proceeded in criminal or civil matter and only the proprietor of such form can be prosecuted in individual capacity. Complaint cannot be initiated against the firm; that the amendment sought on behalf of the respondent cannot be allowed and no summons could be issued against the revisionist as no legal notice was ever sent to him in person and therefore, the impugned order be set aside.
5. Ld. Counsel for respondent has however, submitted that the revisionist has assailed two orders one dated 24/08/12 and another dated 15/02/13. The revision against order dated 24/08/12 is barred by limitation and no application for condonation of delay has been moved and therefore, the revision against the said order is not maintainable being barred by limitation.
6. According to Ld. Counsel for the respondent there is no Crl. Rev. Nos. 158/2013, 159/2013, 160/2013 & 161/2013 Page 2 of 6 illegality, irregularity or impropriety in the impugned order dated 15/02/13 as vide order dated 24/08/12 summoning the accused was already passed and steps were taken for effecting service for appearance on 11/12/12 and on that day an application for correction in the name of proprietor of the firm was moved on behalf of the complainant and another application moved on behalf of the accused firm through counsel was moved for bringing true and correct facts before the court qua name of the proprietor of the accused firm. The accused was already served and therefore there was no requirement of issuing fresh summons against accused. Ld. Trial court has correctly relied on the authority reported as C.C. Alavi Haji Vs. P. Mohammed (2007) 6 SCC 555. The application for correction in the name of proprietor of the accused firm moved on behalf of the complainant was rightly allowed and no notice for carrying out the amendment was required as Ld. Counsel for the accused was already present on the said date and Ld. Trial court has passed the order after hearing submissions from both sides as such question of any prejudice to the revisionist does not arise. Ld. Counsel for the respondent has relied on authorities reported as A.K. Goenka v State, 2001 (1) Civil Court Cases 248 (Delhi), Fakirappa v Shiddalingappa & Anr, 2002 (1) Civil Court Cases 275 (Karnataka), M/s Eita India Ltd v N.C.T of Delhi, 2002 (2) Civil Court Cases 187 (Delhi), Ninan v Rufus Olivero, 1994 (2) Civil Court Cases 295 (Kerala), Maan Agro Centre v Eid Parry (India) Ltd & Anr, 2005 (2) Criminal Court Cases 392 (Bombay).
7. A perusal of the trial court record reveals that vide summoning order dated 24/08/12, the accused was ordered to be summoned for facing trial for commission of offence U/s 138 N.I. Act. The period of filing the revision against said order as per Article 131 Limitation Act was 90 days and the said period has already expired as counsel for accused has appeared on 11/12/12 before Ld. Trial court. No application Crl. Rev. Nos. 158/2013, 159/2013, 160/2013 & 161/2013 Page 3 of 6 for condonation of delay in this regard has been moved and therefore the present revision against the order dated 24/08/12 is barred by limitation.
8. The impugned order dated 15/02/13 has been passed by Ld. Trial trial court after hearing the Ld. Counsels for the parties and therefore it cannot be said that no opportunity of being heard has been given to the accused (revisionist herein). No doubt Ld. Trial court has relied on authority reported as C.C. Alavi Haji (supra) and reference has also been given of provisions of Sec. 319 Cr.PC but Ld. Trial court was within its right to pass the impugned order because the complainant had filed the complaint U/s 138 and 142 Negotiable Instruments Act against M/s Life Line Medicos through its proprietor and there was no requirement of issuing fresh summoning order. The authority reported as Ninan v Rufus Olivero, 1994 (2) Civil Court Cases 295 (Kerala) and M/s Eita India Ltd v N.C.T of Delhi, 2002 (2) Civil Court Cases 187 (Delhi) relied by Ld. Counsel for respondent is fully applicable. Moreover, in the authority reported as Maan Agro Centre v Eid Parry (India) Ltd & Anr, 2005 (2) Mah LJ 44, it has been specifically held that a proprietory concern can be described as M/s ABC through its proprietor, Sh. XY or Sh. XY, proprietor of firm M/s ABC. It makes no difference nor it can cause any prejudice to the accused.
9. In authority reported as M/s Dalmia Cement (Bharat) Ltd. v M/s Galaxy Traders and Agencies Ltd., 2001 (2) Civil Court Cases 159 (S.C) : 2001 (1) Apex Court Journal 174 (SC) : AIR 2001 SC 676, it has been held :-
"The Act was enacted and section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instrument is the law of commercial world legislated to facilitate the activities in Crl. Rev. Nos. 158/2013, 159/2013, 160/2013 & 161/2013 Page 4 of 6 trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments including a cheque, the trade and commerce activities, in the present day world, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the legislature has, in its wisdom thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovating measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country."
10. Ld. Trial court passed the impugned order dated 15/02/13 allowing the application of complainant for correction in the name of proprietor of accused firm in the presence of AR for complainant and Counsel for accused firm and vide impugned order dated 24/08/12 summoning order was passed against the accused firm (revisionist herein). Since the summoning order was already passed by Ld. Trial court and on behalf of the accused appearance was put by Ld. Counsel who had also addressed the arguments, there was no requirement to issue summons to the accused again and the direction given by Ld. Trial court cannot be said to be illegal. In view of the authority reported as Maan Agro Centre v Eid Parry (India) Ltd & Anr, 2005 (2) Mah LJ 44 (supra), there is no merit in the contention raised by the Ld. Counsel for the revisionist that proprietorship concern has no legal entity or that complaint cannot be initiated against it. Even the amendment by way of insertion of Crl. Rev. Nos. 158/2013, 159/2013, 160/2013 & 161/2013 Page 5 of 6 name of proprietor was allowed in the above authority and therefore disposal of the application for correction in the name of proprietor of the accused firm moved on behalf of the respondent was justified. In authority reported as Ninan v Rufus Livero 1994 (2) Civil Court Cases 295 (Kerala) also the correction in the name of the accused was allowed. The contention that no legal notice was served on the revisionist is not to be considered at this stage as the same has to be decided on the basis of evidence adduced during the trial as was held in authority reported as Fakirappa v Shiddalingappa & Anr, 2002 (1) Civil Court Cases 275 (Karnataka).
11. In view of the above discussion, in my considered view there appears no illegality, irregularity or impropriety in the impugned order and revisions are liable to be dismissed and are accordingly dismissed. A copy of order be kept in each file. Copy of order alongwith trial court record be sent to the Ld. Trial court. Revision file be consigned to Record Room.
Announced in the open court today i.e 29th January 2014 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi Crl. Rev. Nos. 158/2013, 159/2013, 160/2013 & 161/2013 Page 6 of 6