Delhi District Court
Icici Bank Ltd vs State on 29 July, 2008
1
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE NEW DELHI
CR No. 52/2008
ICICI Bank Ltd
2nd Floor, S.D. Tower
DDA market, Sector 8,
Rohini, New Delhi.
Petitioner
Versus
State
Respondent
Date of Institution 30.5.08
Date when arguments
were heard 23.7.08
Date of Order 29.7.08
ORDER
This revision petition is directed against the order dated 28/5/2008 passed by the learned Metropolitan Magistrate, New Delhi directing the Chairman of the ICICI Bank Ltd to appear in person to face the trial under section 175 IPC. Aggrieved by the impugned order the ICICI Bank has filed the present revision petition.
The brief facts giving rise to the present revision petition are that a complaint is filed by one Shri Gopi Chand Chauhan alleging that he purchased one motorcycle make Hero Honda Ambition and deposited the down payment of Rs. 20,562/ with the accused No.1 Raheja Motors against the total consideration of Rs. 48,562/ and the remaining amount of Rs. 28,000/ was financed by accused No.2 ICICI Bank Ltd for a period of 18 months. The 2 accused No.3 and 4 on 7/3/2005 at about 8.30 p.m. forcibly took the said motorcycle from the son of the complainant. The complainant lodged the complaint with the police but no action was taken. On inquiries made from the accused No.2, the ICICI Bank Ltd, he came to know that the advance cheques of the instruments given by complainant were not deposited but the default of three installments was shown and the forcible possession of the motorcycle in question was taken by the accused persons. The complainant verified from the bank, where he has his bank account, and came to know that no cheque was ever dishonoured from his account. He also came to know from ICICI Bank Ltd that after repossession of the motorcycle in question it has been sold. The complainant, therefore, filed a complaint for summoning and punishing the accused persons for the offences under sections 392/356 / 420/406/34 of the Indian Penal Code.
The learned Metropolitan Magistrate instead of taking cognizance of the offences and the complaint exercised his option of directing police investigation by exercising powers under section 156 (3) CrPC. During the investigation of the matter the investigating officer served notices upon Legal Manager Sanju Kumar of the ICICI Bank Sector8, S. D. Tower, DDA Market, Rohini, New Delhi to produce documents in the matter but he never turned up nor supplied the documents to the investigating officer and caused unnecessary delay in the investigation. As accused Sanju Kumar despite notices under section 91 CrPC dated 19/2/2008, 27/2/2008 and 25/3/2008 did not produce the requisite documents the investigation could not be completed by the police. Hence complaint/kalandra for the offence under section 175 IPC against accused Sanju Kumar was filed by the police before learned Metropolitan Magistrate, New Delhi.
The learned Metropolitan Magistrate before whom kalandra/complaint under section 175 IPC has been filed on 28/5/2000 took cognizance of the same and issued notice to Chairman of ICICI Bank Ltd for his personal appearance to face trial on 31/5/2008. It is this order of learned Metropolitan Magistrate which is under challenge in this revision petition. 3
I have heard the learned counsel for the revisionist and learned Addl. P.P for respondent State and have gone through trial court record and relevant provisions of law carefully.
There is objection of respondent State to the maintainability of the present revision petition on the ground that the order of learned Metropolitan Magistrate is not subject to revision and only remedy before the petitioner is to go before Hon'ble High Court by invoking section 482 CRPC. Reliance is placed upon the authority reported as Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674 : 2004 AIR SCW 5174, wherein it was observed as follows:
"15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code.
16.Therefore, in our opinion the observation of this Court in the case of Mathew (supra)( AIR 1992 SC 2206 : 1992 AIR SCW 2666 : 1992 Cri LJ 3779) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law."
In Subramanium Sethuraman v State of Maharashtra AIR 2004 SC 4711, also relied 4 upon on behalf of the respondent it was observed as follows:
"16. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion."
In Adalat Prasad's case (supra) the question whether the order of summoning of the accused is subject to revision or not was not considered. It was observed that the Magistrate cannot review an order passed by him for summoning the accused as the power of review of the order is not vested in him. It was also observed that remedy lies to the accused to invoke jurisdiction of Hon'ble High Court under section 482 CrPC. But the question whether revision petition lies against an order of summoning of the accused was not considered or answered in Adalat Prasad's case (supra). In Subramanium's case (supra) it was held that if in the summonscase the plea of the accused is recorded after Notice under section 251 CRPC given to him then it is not open to the accused to see discharge and the procedure contemplated under Chapter XX is to be followed. This case also is not authority on the question whether the order of Metropolitan Magistrate summoning any accused is subject to revision or not. Further, in the present case only the order to summon the ICICI Bank Ltd through its Chairman to face trial is passed by learned Metropolitan Magistrate and the plea of the accused post notice under section 251 CRPC is yet to be recorded by him so Subramanium's case (supra) is distinguishable on this count also. 5
There are direct dictum of Hon Supreme Court on the question whether order summoning the accused is subject to revision not.
In Rajendra Kumar Sitaram Pande v. Uttam AIR 1999 SC 1028, it was observed as follows:
"5. The very object of conferring revisional jurisdiction upon the superior criminal Courts is to correct miscarriage of justice arising from misconception of law or irregularity of procedure.
6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under subsection (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath v. State of Haryana (1978) 1 SCR 222 : (AIR 1977 SC 2185), this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an 'interlocutory order,' In Madhu Limaye v. State of Maharashtra (1978) 1 SCR 749 : (AIR 1978 SC 47), a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding cannot be held to be an interlocutory order. In V. C. Shukla v. State (1980) 2 SCR 380 : (AIR 1980 SC 962), this Court has held that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be 6 appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under subsection (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under subsection (2) of Section 397 of the Code."
In Madhu Limaye v. State of Maharashtra AIR 1978 SUPREME COURT 47, it was observed as follows:
"8. Under Section 435 of the 1898 Code the High Court had the power to "call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order record or passed, and as to the regularity of any proceedings of such inferior Court", and then to pass the necessary orders in accordance with the law engrafted in any of the sections following Section 435. Apart form the revisional power, the High Court possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial justice for the administration of which alone Courts exist. In express language this power was recognized and saved in Section 561A of the old Code. Under Section 397 (1) of the 1973 Code, revisional power has been conferred on the High Court in terms which are identical to those found is Section 435 of the 1898 Code. Similar is the position apropos the inherent powers of the High Court. We may read the language of Section 482 (corresponding to Section 561A of the old Code) of the 1973 Code. It says: "Nothing in this Code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."7
At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions: (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
9. In most of the cases decided during several decades the inherent power of the High Court has been invoked for quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court. In the background aforesaid, we proceed to examine as to what is the correct position of law after the introduction of a provision like subsection (2) of Section 397 in the 1973 Code.
10. As pointed out in Amar Nath's case (AIR 1977 SC 2185) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing subsection (2) in Section
397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of 8 the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include subsection (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court." But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in subsection (2) of Section 397 operates only in exercise of the revisional power of the High court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character, which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory 9 order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
In the light of Rajender Kumar's case (supra) and Madhu Limay's case (supra) the order of Metropolitan Magistrate summoning an accused is subject to revision. Therefore, the present revision petition is maintainable.
In the complaint/kalandra for action under section 175 IPC the police has made the Legal Manager Sanju Kumar accused and has made allegations of nonsupply of requisite documents and the complaint/kalandra is not made against ICICI Bank Ltd or against its Chairman who is summoned by impugned order. Therefore, summoning of the ICICI Bank Ltd and direction for personal appearance of its Chairman to face trial on 31/5/2008 by impugned order does not seem to be proper. Perhaps due to the fact that even after a lapse of more than three years of passing direction for investigation by the police in the matter it was not completed and since the said Sanju Kumar did not cooperate with the investigating agency the learned Metropolitan Magistrate thought it is proper to summon the Chairman of the said bank to acquaint him of the state of affairs in the matter so that the process of investigation is properly completed to give justice to the complainant. But the action of learned Metropolitan Magistrate is not proper on two counts. One, the kalandra/complaint has named the person Sanju Kumar Legal Manager of the said bank was not cooperating with the investigation 10 despite service of notices by the investigating officer under section 91 CrPC. Two, even if the ICICI Bank is to be summoned the personal appearance of Chairman of the said bank is not essential. There is nothing in the kalandra/complaint to show that the chairman of the said bank was either acquainted of the state of affairs with regard to the facts pertaining to the complaint filed before learned Metropolitan Magistrate by the aggrieved party against the accused persons or state of affairs pertaining to nonCorporation of the officers of the concerned branch of the said bank with the police during investigation ordered by the learned Metropolitan Magistrate. Further, the provisions of section 305 CrPC gives option to the Incorporated company to appoint a representative for the purpose of enquiry or trial. This option is to be exercised by the said company and the court, in my view, cannot direct that the company or for the purpose of the present case ICICI Bank Ltd should be represented by its chairman or any other officer to face trial.
Before parting with the order I would like to mention here that it is a strange case in which the complainant before the learned Metropolitan Magistrate in the complaint filed against the accused persons has alleged that without presenting the cheques for encashment the ICICI bank and its officers have repossessed the vehicle in question and when the learned Metropolitan Magistrate directed investigation in the matter by the police the officer of the ICICI Bank Ltd did not cooperate with the police giving rise to the prima facie inference that the allegations made in the complaint about repossession of his vehicle against ICICI Bank Ltd are true. Therefore, I am of the view that the copy of this order, copy of the complaint filed before the learned Magistrate and the copy of the complaint/kalandra under section 175 IPC filed by the police before learned Metropolitan Magistrate should be sent to the chairman and the managing director of the ICICI Bank Ltd to acquaint him of the state of affairs of this case and I hope that they may take action to redress the grievances of the complainant on administrative side in case the case of the complainant in Gopi Chand Chauhan is genuine. 11
In the light of the of the above discussion the impugned order dated 28/5/2008 of learned trial court is set aside. The copy of the order be sent to SHO/IO of the concerned Police Station who along with this copy of this order shall also serve the copy of the complaint dated 30/3/2005 filed by Gopi Chand Chauhan and copy of the kalandra/complaint filed by the police under section 175 IPC upon the Chairman and Managing Director of the ICICI Bank Ltd and file affidavit before learned Metropolitan Magistrate within one month from today that the copy of the said documents have been served upon Chairman and Managing Director of the said bank. The learned Metropolitan Magistrate shall proceed against the person named as accused in kalandra/complaint filed by the police. The order be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this order. The file of the revision petition be consigned to the record room. Announced in the open court on 29th of July, 2008 ( S K Sarvaria ) Additional Sessions Judge New Delhi