Delhi District Court
Cr No. 35/14. Sanjeev Aggarwal vs . J & K Bank Ltd. on 16 December, 2014
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CR No. 35/2014.
Sanjeev Aggarwal,
R/o B310, Karora CGHS,
Plot No. 39, Sector 6,
Dwarka, New Delhi. ... Revisionist.
Vs.
J & K Bank Ltd.,
9, Local Shopping Complex First Floor,
Okhla Industrial Area, PhaseII,
New Delhi. ... Respondent.
Date of Institution. : 5.7.2014. Date of Arguments. : 16.12.2014. Date of Order. : 16.12.2014. 16.12.2014. Present: Sh. Kamal Bahl, ld. counsel for revisionist (accused
no. 4 before the ld. Trial Court against whom notice for the offence u/s 138 r/w/s 141 and 142 of the NI Act as per provision of Section 251 CrPC has been framed vide impugned order).
Sh. Rohit Singhla, ld. counsel for respondent Page No. 1 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd.
complainant.
Alongwith the present criminal revision petition, an application u/s 5 of the Limitation Act for condonation of delay in filing the present revision petition was also filed.
Arguments heard.
I have perused the entire record including TCR, carefully.
:: ORDER ON THE APPLICATION U/S 5 OF THE LIMITATION ACT :: The limitation period for filing the criminal revision petition is 90 days as per Article 131 of the Limitation Act. The impugned order is dated 30.10.2013. The present revision petition was filed on 5.7.2014. There appears to be delay of 5 months and 5 days in filing the present revision petition.
In the application for condonation of delay, it is mentioned that the revisionist was under the impression that there is no provision of discharge in a case u/s 138 of the NI Act and only recently under the legal advise of his counsel and in view of the judgment of Hon'ble Supreme Court in case of "Bhushan Kumar Vs. State", 2012 (12) SCC 424, the revisionist got to learn that at the stage of framing of notice u/s Page No. 2 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd. 251 CrPC, a speaking order is to be passed by the ld. Trial Court and he can plead for his discharge at the said stage.
Considering the facts and circumstances, in view of the reasons mentioned in the application, in order to do substantive justice between the parties and in the interest of justice, the delay in filing the present revision petition, is condoned.
:: ORDER ON REVISION PETITION ::
1. The challenge in the present criminal revision petition u/s 397 CrPC filed by the revisionist, is to the impugned order dated 30.10.2013 passed by Sh. Jagmohan Singh, ld. MM8 (NI Act), Dwarka Courts, Delhi, in complaint case no. 3561/13, titled as "The Jammu & Kashmir Bank Ltd. Vs. M/s SVIL Mines Ltd. & Others", u/s 138 r/w/s 141 and 142 of the NI Act, whereby the ld. Trial Court framed the notice u/s 251 CrPC for the offence u/s 138 of the NI Act against the accused persons including the revisionist for the aforesaid offence.
2. The case of the revisionist is that the ld. Trial Court had not passed a speaking order inspite of judgment of Hon'ble Supreme Court in case titled as "Bhushan Kumar Vs. State", Page No. 3 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd. 2012 (12) SCC 424, wherein in para no. 20 it was held as under: "It is inherent in Section 251 of the Code that when an accused appeared before the trial Court pursuant to summons issued Under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."
3. In this regard, the revisionist has also relied upon the judgment of Hon'ble Delhi High Court in case titled as "Lilliput Kidswear Ltd. & Others Vs. Nahar Industrial Enterprises", CRL. M.C. No. 4722/2013. The revisionist has also relied upon the following case laws:
1. Urrshila Kerkar Vs. Make My Trip (India) Pvt. Ltd., MANU/DE/4138/2013.
2. Arvind Kejriwal & Others Vs. Amit Sibal & Page No. 4 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd.
Another, MANU/DE/0177/2014.
3. Ramesh Kr. Sareen Vs. State & Another, CRL. M.C. No. 3405/2013.
4. Indian Technomac Company Ltd. Vs. State & Another, CRL. M.C. No. 1490/2014.
5. Manish Kant Aggarwal Vs. NAFED & Another and D.D. Giri Vs. State (NCT of Delhi) & Others, 2009 (1) JCC (NI) 41.
6. P.K. Sharma & Others Vs. State & Another, 2009 (2) JCC (NI) 127.
7. Gujarat Oleo Chem. Ltd. & Others Vs. State & Another, Crl. M.C. No. 2756/2008.
8. Geeta Srivastava Vs. Bhanu Sharma, 2003 Crl. L.J. 801.
9. Pratap Singh Yadav & Another Vs. Atal Behari Pandey, 2003 Cri. L.J. 705.
Page No. 5 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd.
10. Gita Berry Vs. Genesis Educational Foundation, 2008 (2) JCC (NI) 153.
11. Girish Saxena Vs. Praveen Kumar & Others, 141 (2007) DLT 8.
12. Harinder Dhingra Vs. State & Another, 137 (2007) DLT 231.
13. Smt. Kamana Gupta Vs. NCT of Delhi & Another, 2001 (2) JCC (Delhi) 61.
14. Sanjay Banaik Vs. State & Another, 2008 (4) JCC (NI) 371.
4. Per contra, ld. counsel for respondent has submitted that the present revision petition is nothing, but an attempt to delay the proceedings and to gain time. He has further submitted that in view of the judgment of Three Bench of Hon'ble Supreme Court in case titled as "Subramanium Sethuraman Vs. State of Maharashtra", 2005 SCC (Crl.) 242, there was no need for the ld. Trial Court to pass a detailed order Page No. 6 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd. while framing of notice u/s 251 CrPC for the offence u/s 138 r/w/s 141 and 142 of the NI Act, as there is no provision of discharge in a summons triable complaint case as per Chapter XX of CrPC, as an accused can be discharged u/s 239 CrPC only in a warrant trial case, which is not the situation herein. He has also relied upon the judgment in case titled as "Dashrath Rupsingh Rathod Vs. State of Maharashtra & Another", 2014 VIII AD (SC) 293, to argue that since the judgment in case of Subramanium Sethuraman's case (supra) was passed by Three Bench and the said judgment was not considered in subsequent case of Bhushan Kumar's case relied upon by the revisionist, therefore the earlier larger bench judgment would prevail and hence there was no need for the ld. Trial Court to pass speaking order while framing of notice u/s 251 CrPC. He has also submitted that the judgment of Hon'ble Delhi High Court relied upon by the revisionist is applicable only, where written application for discharge has been moved and since neither any written application nor oral submissions for discharge of revisionist were made before the ld. Trial Court, therefore the present revision petition deserves to be dismissed.
5. In rebuttal, ld. counsel for revisionist has submitted that it was not obligatory for the revisionist to move a formal Page No. 7 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd. application for discharge in view of ratio of aforesaid cases relied upon and rather it was obligatory for the ld. Trial Court to pass speaking order while framing notice u/s 251 CrPC as to how and why offence u/s 138 r/w/s 141 and 142 of the NI Act is made out against the revisionist.
6. Considering the submissions of ld. counsels for both the parties and having gone through the records, I am of the considered opinion that it cannot be said that the Hon'ble Courts in the judgments relied upon by the revisionist, were not aware about the judgment relied upon by the ld. counsel for respondent. Further in case of Lilliput Kidswear Ltd.'s case (supra), the ld. Trial Court was directed to pass speaking order on the point of framing of notice u/s 251 CrPC. Also in case of Indian Technomac Company Ltd.'s case (supra), the ld. Trial Court was directed to pass speaking order on the point of framing of notice u/s 251 CrPC.
7. Considering the totality of facts and circumstances and in view of the ratio of the aforesaid cases relied upon by the ld. counsel for revisionist, the matter is remanded back to the ld. Trial Court with the direction to pass speaking order on the point of notice u/s 251 CrPC, after giving opportunity to both Page No. 8 of 9. Contd... ... ...
CR No. 35/14. Sanjeev Aggarwal Vs. J & K Bank Ltd. the parties and considering their submissions. However only one effective opportunity shall be given to the revisionist for this purpose. Revision petition is accordingly disposed of.
8. A copy of this order alongwith TCR be sent back to the ld. Trial Court for 23.12.2014 at 2.00 pm, for further proceedings as per law.
9. Parties are directed to appear before the ld. Trial Court at the given date and time.
10. Revision petition file be consigned to record room. Announced in the open Court on 16.12.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 9 of 9. Contd... ... ...