Delhi District Court
Mr. Vinod Vij (Director) vs M/S Om Prakash Prem Chand & Co on 4 January, 2007
IN THE COURT OF SHRI TALWANT SINGH, ADDITIONAL
SESSIONS JUDGE, KARKARDOOMA COURTS, DELHI.
Case ID No. 02402R0562592006
Criminal Revision No. 194/2006
Police Station Preet Vihar
Date of Filing 6th October 2006
Date of Decision 4th January 2007
In the Matter of:
1. Mr. Vinod Vij (Director)
M/s Vij Constructions Ltd.,
6/3, Kalkaji Extension,
New Delhi-110019.
2. M/s Vij Constructions Ltd.
6/3, Kalkaji Extension,
New Delhi-110019. ..... Petitioners
VERSUS
M/s Om Prakash Prem Chand & Co.
Plot No. 1, Vasundhara Prahlad Garhi,
Ghaziabad (U.P.)
Through its partner
Mr. Manish Kumar Goyal ..... Respondent
ORDER
1. The revisionist has challenged the order dated 29.7.2006 whereby he was given Notice U/s 251 Cr.PC for the offence U/s 138 Negotiable Instruments Act. Petitioner No. 1 is stated to be the Director of Petitioner No. 2/Company, which is a limited company engaged in construction work and having business dealings with respondent/company for a long period. Petitioner admits that they had issued a cheque of Rs.8,146/- dated 24.7.2005 to the respondent, which was dishonoured for insufficient funds. The dishonoured Page 1 of 4 cheque was given back on 10.9.2005 to the respondent and as per respondent, the notice was sent on 6.10.2005 which was duly replied by the petitioner through their counsel on 22.10.2005 and the said reply was sent through registered post and duly received by the respondent/company. In the said reply, respondent was called upon to return the cheque to the petitioner and collect the payment/draft already prepared by his client at the earliest.
2. It is further mentioned in the revision petition that the draft was prepared on 14.10.2005 for a sum of Rs.8,146/- but the respondent intentionally did not send anybody to collect the draft and to get back the cheque from the petitioner and on the contrary, the complaint in question was filed U/s 138 Negotiable Instruments Act. From the first date of appearance, the petitioners are requesting the respondent to take the bank draft but the respondent has refused to do so and Notice U/s 251 Cr.PC has been framed against the petitioners.
3. The order of framing of notice has been challenged on many grounds like the payment in the form of bank draft was already ready and the respondent was requested to collect the same after handing over the cheque but intentionally the respondent chose to file the complaint to harass the petitioners and the complainant had intentionally concealed the fact regarding receiving of the reply/notice from the counsel of the present petitioners. It has been prayed that the order dated 29.7.2006 may be set-aside and the notice U/s 251 Cr.PC be Page 2 of 4 also set-aside.
4. Notice was issued to the respondent. Trial Court Record summoned. Arguments heard.
5. Ld. Counsel for the petitioner has reiterated his stand as mentioned above. On the other hand, Ld. Counsel for the respondent has relied upon the judgment of Hon'ble Supreme Court in the matter of Adalat Prasad vs. Rooplal Jindal & ors. 2004 (3) JCC 1347 wherein it was held that the Magistrate had no power to review his order for issuance of process against the accused persons. He has also relied upon another judgment of Hon'ble Supreme Court in the matter of State Farm Corpn. of India Ltd. vs. M/s Nijjer Agro Foods Ltd. & Ors. AIR 2006 Supreme Court 679 wherein it was held that the request for dropping of proceedings sought on the plea that the accused had already discharged the liability by giving Bank drafts in lieu of cheques and it can only be considered at the time of trial and not at the time of issuing process, so the proceedings cannot be dropped at that plea.
6. Ld. Counsel for the respondent has also relied upon judgment of Hon'ble High Court of Bombay in the matter of Sri Krishna Bhupathi vs. Chandana Constructions 2004 (2) C.C. Cases (HC) 77 wherein it was held that the plea of the petitioner that he had already made the payment and the complaint was filed only with a view to harass him, the same is the subject matter of evidence and the question of fact is Page 3 of 4 to be appreciated not at the initial stage of proceedings. He has also relied upon the judgment of our own High Court in the matter of Mrs. Monica Gogia vs. State & ors. 2005 (2) C.C. Cases (HC) 215 wherein it was held that at the stage of charge, evidence and documents produced by the accused cannot be taken into account and the same principal is to be applied at the stage of issuing summons, so no interference can be made.
7. Keeping in view the judgments of Hon'bleApex Court and other High Courts as well as our own Hon'bleHigh Court, it is clear that this is not appropriate stage to consider the defence of the petitioner that he had got prepared the bank draft for making the payment in lieu of the dishonoured cheque, which was intentionally not collected by the respondent and petitioner will get opportunity to prove the same at the time of trial. Hence there is no illegality or infirmity in framing of Notice U/s 251 Cr.PC against the petitioners. The revision petition is devoid of any merits and the same is hereby dismissed.
8. Copy of this order be placed in the Trial Court Record and the same be sent back. Thereafter revision file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON THIS 4th DAY OF JANUARY, 2007.
(TALWANT SINGH) Additional Sessions Judge Karkardooma Courts Delhi-110032.
Page 4 of 4