Delhi District Court
Rachna Gupta vs M/S Genesis Finance Co. Ltd on 9 February, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL,
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 248 of 2021
CNR No. DLSE01-010746-2021
IN THE MATTER OF:
Rachna Gupta,
W/o Shri Rishi Gupta,
R/o D-43, Raheja Atlantil,
Sector-31, Gurugram - 122003
.......Revisionist
Versus
M/s Genesis Finance Co. Ltd.
4, MMTC/STC, Geetanjali Market,
New Delhi-110017
Email:- [email protected]
........Respondent
Instituted on : 02.12.2021
Reserved on : 15.01.2022
Pronounced on : 09.02.2022
JUDGMENT
1. Vide this revision, revisionist takes exception to the order dated 18.10.2021, whereby her application for dropping of proceedings under section 251 Cr.P.C read with section 258 Cr.PC was dismissed by Ld Metropolitan Magistrate-02, NI Act, South East District, Saket Courts in Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 1 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:07:39 +0530 cases bearing CT No. 619503/2016, titled as Genesis Finance Co. Ltd Vs. Rachna Gupta.
2. For the sake of convenience, relevant observations of Ld Magistrate is reproduced herein below :-
"Heard. Record perused. I have gone through the submissions of the Ld. Counsels and perused the record. It is the matter of record that the Accused/Applicant was summoned by way of order dt. 22.05.2015. In the case of Adalat Prasad vs. Roop Jindal & Ors. (2004) 7 SCC 338 ("Adalat Prasad Case "), the Hon'ble Supreme Court has observed that there cannot be a recalling of the summoning order by the Magistrate. Additionally, the Hon'ble Supreme Court of India in Subramanium Sethuraman vs State of Maharastra & Anr. Appeal (Crl.) No. 1253/2002, noted 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 .... As observed by us in Adalat Prasad's case the only remedy available to an aggrieved Accused/Applicant to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case." (emphasis supplied)
5. Further, the Hon'ble High Court of Delhi in Sudeep Jain vs M/s ECE Industries Ltd., Cri. M.C. No. 1822/2013, has also noted that "
Magistrate once issuing the summons order against the Accused/Applicant are precluded from reviewing their summons orders in view of the decision of the Apex Court in Adalat Prasad vs Rooplal Jindal & Ors". Additionally, recently, the Hon'ble High Court of Delhi in R.K Aggarwal vs Brig Madan Lal Nassa (Crl. MC 1507/2015) has clearly stated that in Chapter XX of Cr.P.C, after filing a private complaint in a summons case, the Accused/Applicant is either convicted or acquitted. There is no stage of discharge of Accused/Applicant at any stage under Chapter XX of Cr.P.C. Ld. Counsel for the Accused/Applicant had relied upon the judgment of Bhushan Kumar Case to state that this Court has a power to discharge the Accused/Applicant. However, it is to be noted that the said decision was in the context of a warrant triable case and even while making the observation qua discharge in a summons case, reference has been made to Section 239 Cr.P.C, which is applicable to a warrant trial and not summons trial.
Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:07:48 +0530
Moreover, while remanding the matter back to the Hon'ble High Court for appropriate orders, the Hon'ble Supreme Court in Amit Sibal vs Arvind Kejriwal and Ors.(Crl. Appeal 1101/2016) had observed the following:
"The appellant has challenged the aforesaid directions in these proceedings on the ground 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 Metropolitan Magistrate to consider the same and pass appropriate order is contrary to law. The substance in this contention raised by the learned counsel for the appellant to this legal position is not even rebutted by the respondents."
6. Clearly, the challenge in the aforesaid case was on the ground that once summoning order has been passed and charge is to be framed, there is no procedure of hearing the Accused/Applicant and consequent discharge in a summons case. In view here of, it may be stated that it is implicit in the order of Hon'ble Supreme Court that at present, trial court does not have power to discharge the Accused/Applicant in a summons triable case. Additionally, in In Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881., LL 2021 SC 217, a Constitution Bench of the Hon'ble Supreme Court has affirmed the judgments in Adalat Prasad Case and Subramanium Sethuraman Case and noted that:
"A close scrutiny of the judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) would show that they do not warrant any reconsideration. The Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process." (emphasis added) Further, in the aforesaid judgment of the Hon'ble SC, it was also noted that provisions of section 258 Cr.P.C are not applicable to proceedings under section 138 NI Act as the same embodies a complaint case.
7. As such, the present application is liable to be dismissed on the ground of maintainability itself. Further, with respect to the contention of the absence of legal liability/debt against the cheque in question, it is observed that perusal of the contentions of the parties (at paragraphs 1 and 3 above) itself evinces that the same is a matter of trial, which will require relevant facts to be proved/averred by way of cogent evidence; and cannot be decided on the basis of mere averments.
8. Accordingly, the application for discharge stands dismissed. It is Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:07:56 +0530 made clear that nothing in this order shall be considered as an expression on the merits of the present complaint."
3. The revisionist is aggrieved with the said order and has assailed the same on various grounds which can be summarized as under :-
i) That Ld Trial Court failed to appreciate the fact that the revisionist was merely a guarantor and cheques were given as security cheques;
ii) That Ld Trial Court failed to appreciate the fact that the liability of revisionist would only have arisen if the principal borrower could have been defaulted in making the payment;
iii) That Ld Trial Court failed to appreciate the fact that parties had arrived at settlement;
iv) That the impugned order is against the settled principle of law;
v) That Ld Trial Court erred in holding that by not framing notice u/s 251 Cr.PC, it shall be recalling order of cognizance;
4. No arguments were addressed on behalf of revisionist despite repeated opportunities. However, since material available on record including the averments made and grounds taken in the instant petition would have sufficed for disposal of the instant petition, therefore instant petition was fixed for orders.
5. I have perused the record.
6. Since statutory provisions of section 258 CrPC has an important bearing for outcome of present petition, therefore, same is being reproduced Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 4 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:08:04 +0530 hereinunder for the sake of convenience:-
258. Power to stop proceedings in certain cases. In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge."
7. Therefore, a cursory reading of section 258 Cr.PC reveals that the said statutory provisions are applicable in a summon triable case which is instituted otherwise than upon a complaint i.e. a case instituted upon a police report popularly known as 'State Case'. The said provisions specifically excludes a private criminal complaint like the case in hand (in a summon triable case) from its purview.
8. Apex Court recently in Re: Expeditious Trial of Cases under Section 138 N.I.Act, 1881. Suo motu Writ Petition (Crl.) No. 2 of 2020 D.O.D. 16.04.2021, observed as under:-
"19. In Meters and Instruments (supra), this Court was of the opinion that Section 143 of the Act confers implied power on the Magistrate to discharge the accused, if the complainant is compensated to the satisfaction of the court. On that analogy, it was held that apart from compounding by the consent of the parties, the Trial Court has the jurisdiction to pass appropriate orders under Section 143 in exercise of its inherent power. Reliance was placed by this Court on Section 258 of the Code to empower the Trial Courts to pass suitable orders.
20. Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply "as far as may be" to trials of complaints under Section 138. Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore, Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. The judgment Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:08:10 +0530 of this Court in Meters and Instruments (supra) in so far as it conferred power on the Trial Court to discharge an accused is not good law. Support taken from the words "as far as may be" in Section 143 of the Act is inappropriate. The words "as far as may be" in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judge's duty is to interpret and apply the law, not to change it to meet the Judge's idea of what justice requires. The court cannot add words to a statute or read words into it which are not there.
21. A close scrutiny of the judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) would show that they do not warrant any reconsideration. The Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. As held above, this Court, in its anxiety to cut down delays in the disposal of complaints under Section 138, has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation. However, amendment to the Act empowering the Trial Court to reconsider/recall summons may be considered on the recommendation of the Committee constituted by this Court which shall look into this aspect as well."
9. Further, Andhra Pradesh High Court in case Deevi Srinivasa Sai Radha Lakshmi & Anr vs State Of Andhra Pradesh , Criminal Petition No.648 of 2015 dated 31-03-2015, held as under:-
" 5) Upon hearing both sides and on perusal of record, I find no merits in the petition. This is a case instituted on private complaint and it is a summons case. So, the procedure contemplated under Sections 251 to 259 is applicable to the case on hand. Section 258 deals with powers of Magistrate to stop proceedings in certain cases, which reads thus:
258. Power to stop proceedings in certain cases: In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:08:17 +0530 been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
Under Section 258 of the Code, in appropriate cases, the Magistrate can stop the proceedings at any stage without pronouncing judgment. If stoppage of proceedings is effected after recording the evidence of principal witnesses, Magistrate has to pronounce the judgment of acquittal and in any other case, the Magistrate can release the accused and such release has an effect of discharging the accused. The underlying principle in empowering the Magistrate to stop the proceedings without pronouncing the judgment or pronouncing judgment of acquittal or releasing the accused is to prevent miscarriage of justice i.e. upon finding that there is no material to proceed further and such proceeding amounts to abuse of process of law and resulting in undue harassment to the accused. What is to be noted from Section 258 Cr.P.C. is that it applies only to those cases which are instituted on police reports but not to the cases instituted upon private complaints. This was made clear in the following judgments.
a) In John Thomas v. K.Jagadeesan Apex Court held thus: One of the normal rules in summons cases is that once trial started, it should reach its normal culmination. But Section 258 is included in the Chapter XX of the Code in the form of an exception to the aforesaid normal progress chart of the trial in summons cases. But by S.258 the power of Court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all.
b) Similar view was taken in another decision reported in Manjunath C.Kammar v. A.Kanthilak and Company wherein Karnataka High court held thus:
10. In these two matters, the proceedings are initiated on the basis of the complaints under Section 200 Cr.P.C. Under such circumstances, the learned Magistrate does not get Jurisdiction to proceed under Section 258 Cr.P.C. and the same can be exercised only if the proceedings are instituted otherwise than upon a complaint. In other words, the language of Section 258 Cr.P.C. is clear that this Section applies only to cases based on police report. As the present cases are based on private complaints, Section 258 Cr.P.C. will not apply to these cases.
Therefore, from Section 258 Cr.P.C. and above precedential jurisprudence, it is clear that stoppage of proceeding at different stages as contemplated under Section 258 Cr.P.C. can take place only in those cases instituted otherwise than upon a complaint. As already stated, since the case on hand is one instituted upon private complaint, the benefit under Section 258 Cr.P.C. cannot be extended to it. So far as other points raised by the petitioner/A2 is Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:08:27 +0530 concerned, the trial Court rightly held that whether the complainant deposed falsehood with regard to timing of the offence and other material facts or not can be decided only after due trial. In this petition the same cannot be determined which will amount to premature conclusion. So, at the outset, the impugned order does not suffer any illegality or irregularity warranting interference."
10. In view of aforesaid legal position, it is clear that stoppage of proceeding as contemplated under Section 258 Cr.P.C. can take place only in those cases instituted otherwise than upon a complaint. Since, the case in hand is one instituted upon private complaint, the benefit under Section 258 Cr.P.C cannot be extended. Therefore, the plea of revisionist that proceedings in the instant matter can be stopped against her under provisions of section 258 Cr.PC is without merit.
11. Now coming to the other plea of revisionist that Ld Trial Court erred in law by not discharging her, is also devoid of any merit as it is settled law that there is no provision for discharge in a ' summon triable' case like the present one and once an accused (revisionist herein) is summoned to face trial by a Criminal Court and no challenge being made to such order, the next stage as per scheme of criminal procedure code would be to serve notice upon her and Criminal Court does not have power to discharge an accused in the summon triable case.
12. Reliance is placed upon judgment of Hon'ble Apex Court in Amit Sibal vs. Arvind Kejriwal & Ors., (2018) 12 SCC 165, wherein Hon'ble Supreme Court set aside order of Hon'ble Delhi High Court wherein Hon'ble Delhi High Court had 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 accepted the Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:08:35 +0530 contention of learned counsel for petitioner that in a complaint case where summoning order has been issued 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.
13. In Subramanium Sethuraman Vs. 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.
14. In the wake of aforesaid settled principle of law, the view taken by Ld Trial Court cannot be faulted with in the instant case.
15. Now coming to the last pleas of revisionist that Ld Trial Court failed to appreciate the fact that the revisionist stood merely as a guarantor and her liability would only arise in case of default by the principle borrower and the cheque in question was given as security cheque: In my considered view, the said pleas as raised by the revisionist relate to disputed questions of fact and call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court during trial and therefore, the observations of Ld Trial Court (as reflected in the impugned order) on this count also, cannot be faulted with.
16. In light of aforesaid discussions, this court finds no valid reasons to interfere in the order dated 18.10.2021 passed by Ld Trial Court. Ld. Counsel for revisionist has failed to point out any patent Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:08:45 +0530 illegality/ infirmity or jurisdictional error in the impugned order. The revision petition stands dismissed accordingly.
17. Copy of this judgment be sent to Ld. Trial court for information.
18. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.02.09 14:08:53 +0530 Announced in the open (ANUJ AGRAWAL) Court on 9th February, 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No.248 of 2021 Rachna Gupta Vs M/s Genesis Finance Co. Ltd Page No. 10 of 10