Delhi District Court
Anil Kumar Goel And Ors vs Devi Dayal Garg on 19 October, 2023
IN THE COURT OF MS AMBIKA SINGH, ASJ-02/ WEST
DISTRICT, TIS HAZARI COURTS, NEW DELHI
Criminal Revision No. 93/2023
(1) Anil Kumar Goel
S/o Late Sh. Amrit Lal Goel
R/o 54-UA, Jawahar Nagar,
Delhi-110007
(2) Puneet Goel
S/o Sh. Anil Kumar Goel
R/o 54-UA, Jawahar Nagar,
Delhi-110007
(3) Aseem Goel
S/o Late Sh. Ravinder Nath
R/o 54-UA, Jawahar Nagar,
Delhi-110007
.....Revisionists
Versus
Sh. Devi Dayal Garg
S/o Late Sh. Rameshwar Dass Garg,
R/o 29/7, East Punjabi Bagh,
New Delhi.
.....Respondent
Date of institution of the cases : 22.02.2023
Date when the cases reserved for order : 19.10.2023
Date of announcement of order : 19.10.2023
JUDGMENT
CR No. 93/2023
Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 1 of 17 19.10.2023
1. This criminal revision petition assails the order dated 18.05.2022 and 28.11.2022 summoning order and application for discharge order of respondent/accused no. 2 to 4 (hereinafter to be referred as the impugned order) passed by the Ld. MM, N.I. Act (Digital Court) in case CC No. 1036/2022. A prayer has been made to set aside the said impugned order.
2. The Ld. Trial court vide order dated 18.05.2022 and 28.11.2022 has passed the summoning order and application for discharge order of respondent/accused no. 2 to 4. Briefly stated, it is the case that the respondent/complainant has filed the case against the accused Mr. Yasu Goel and the accused approached the complainant in first week of December 2018 and requested for extending financial help and represented that if the loan was given to him, he would reimburse the same with interest. It is further alleged by the complainant/respondent that it was agreed that the accused no. 1 would reimburse with interest @ 6% p.m. monthly due, monthly payable or monthly compoundable. It is further alleged that the complainant/respondent disbursed 1,75,00,000/- in five tranches as on Rs. 25 lacs on 29.11.2018, Rs. 35 lacs on 30.11.2018 and on Rs.30 lacs on 01.12.2018, Rs. 50 lacs on 24.12.2018 and Rs. 35 lacs on 26.12.2018 in the account of accused no. 1 It is further alleged that after receiving the loan amount, loan agreement dated 02/02/2019 was signed and executed between the complainant and accused no. 1 in order CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 2 of 17 to maintain clarity which was also signed by the accused no. 2 to 4 (Revisionists herein) as guarantors. It is further alleged that accused no. I in due discharge of his liability issued five cheques in favour of the complainant totaling to Rs.1,75,00,000/- towards principal amount. It is further alleged that on the assurance of the accused no. 1, complainant finally presented all the five cheques on 10.01.2022 for their encashment to his banker HDFC Bank Ltd Punjabi Bagh, all cheques were dishonoured on 11/01/2022 for reason "fund Insufficient". It is further alleged by the complainant that he got issued a demand notice dated 03/02/2022 and on failure of the accused no. 1 to return the loan amount, the present complaint was filed against the accused no. 1 and complainant/respondent. On the basis of abovesaid contents, the complainant filed a complaint case under section 138 NI Act on 16/03/2022.
3. Revisionist has assailed the impugned order dated 18.05.2022 and 28.11.2022 on the ground that firstly, Ld Trial Court while passing the impugned summoning order has ignored and misconstrued itself on legal and factual matrix of the case, as the Ld. Trial Court has failed to consider that even as per the contents of complaint as well as the documents filed and relied upon by the complainant, no offence under section 138 NI Act is made out against them but Ld. Trial Court dismissed application outrightly without appreciating the submissions, hence, the impugned order dated 18/05/2022 and 28/11/2022 is liable to be set- aside. Secondly, Ld Trial Court has failed to appreciate and CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 3 of 17 consider that the complainant/respondent herein himself has time and again stated in his complaint as well as evidence by way of affidavit that the accused no. 1 has issued the post dated cheques in due discharge of his liability thereby meaning that the offence of section 138 NI Act, if any, is made out only against the accused no. 1 not all other accused persons, hence, the impugned order is liable to be set-aside. Thirdly, Ld. Court has failed to appreciate that it was the accused no. 1 who has approached the complainant, who has taken the loan, who has entered into the loan agreement, who has sought extension and even has issued the cheques from time to time in favour of the complainant in due discharge of his liability towards the complainant but sequence of incident and contention of complainant was also ignored by the Ld. Trial Court, hence, the impugned order is liable to be set-aside. Fourthly, Ld. Trial Court has failed to appreciate that the only role of the revisionist/accused no. 2 to 4 in the present case are that the accused no. 2 to 4 stood guarantors for the accused no. 1 for securing the loan amount. Even from the perusal of the clause no. 5 of loan agreement it is clear that accused no. 2-4 are the guarantors and were hold responsible to pay loan amount with interest, jointly and severally, but this was also ignored by the Ld. Trial Court, hence, the impugned orders are liable to be set-aside. Fifthly, Ld. Trial Court has failed to appreciate that as per the provisions of section 138 NI Act, the offence is made out only against that person who has lawful debts and liabilities towards the complainant and the issuer of the cheque(s) and no offence U/s 138 NI Act makes out CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 4 of 17 against the other person because the sole liability is only of the issuer of cheques, but this was also ignored by the Ld. Trial Court, hence, the impugned order is liable to be set- aside. Fifthly, Ld. Trial Court has failed to appreciate that even from the perusal of the complaint it is clear beyond reasonable doubt that it was the accused no. 1 who has approached the complainant, requested for loan, received the loan, signed and executed the loan agreements from time to time, issued the cheques and the liability was only of the accused no. 1. Apart from all above, it was the accused no. 1 who has issued the cheques in question under his signature in due discharge of lawful debts and liabilities towards the complainant and cheques in question was dishonoured by the banker of the accused no. 1 only, thus, the offence under section 138 NI Act is made only against the accused no. 1 but this was also ignored by the Ld. Trial Court and passed the impugned order, hence, the impugned order is liable to be set-aside. Seventhly, Ld. Trial Court while issuing the summons of the complaint case failed to consider the contents of the complaint as well as documents filed and relied upon by him in support of his case and issued summons of the present case in a mechanical manner which is totally illegal and arbitrary, hence, the impugned order is liable to be set-aside. Lastly, it is argued that perusal of the impugned summoning order dated 18/05/2022 and dismissal order of application for discharge order of respondent/accused no. 2 to 4 dated 28/11/2022, it is clear that Ld. Trial court have not differentiate between the accused persons and their roles. It is further submitted that the Ld. Trial CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 5 of 17 Court even has not noted or mentioned the reason for dismissal of the application, thus, it is clear the impugned order is of general nature without specifying the specific names or numbers of the accused persons. In the conspectus of the given facts and circumstances, the impugned order against the revisionists (accused no. 2 to 4) is not according to the settled principles of law and thus, is liable to be set aside.
4. Notice of the Revision petition was issued to the respondent on which the respondent entered her appearance. TCR was also summoned.
5. On the other hand, Ld. Counsel for respondent/complainant has argued that the present revision petition is not maintainable as the revisionists failed to point out any infirmity in the impugned order dated 18.05.2022 & 28.11.2022. The allegation are full of falsehood and it is not permissible under the law to look into the evidence of the revisionists at the stage of summoning. The revisionists are at liberty to prove the same by leading evidence in defence at the appropriate stage.
6. I have heard the arguments and perused the record carefully.
7. The revisionists/accused persons has also filed an application for condonation of delay alleging that impugned CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 6 of 17 order dated 18.05.2022 within 90 days i.e. 17.08.2022 but the revisionists/accused no. 2 to 4 came to know about the said order only in the third week of August, 2022, hence, on 22.08.2022, revisionists/accused appeared before the Ld. Trial Court and secured bail for them and on that day, the matter was adjourned for 28.11.2022. Further, revisionists/accused persons were going through financial crunches and accused no. 1 is old aged persons and remained ill and suffering from various old age ailments including heart problem. Medical documents have also filed. Due to the reasons and multiplicity of cases, revisionists/accused could not contact their counsel on time to file the revision withing limitation period. It is further submitted that if the delay is counted from the date of 18.05.2022, then after adjusting the period of 90 days upto 17.08.2022, there is an admitted delay of about 170 days which was neither intentional nor deliberate and also due to the reason that due to the said judgment the counsel moved an application for discharge of accused no. 2 to 4. If the period of limitation is counted for the date or dismissal order dated 28.11.2022, then there is no delay in filing the present revision petition.
8. The Ld. Counsel for the respondent has argued on the application for condonation of delay and the same has been strongly opposed and he has argued that no grounds are made out for condonation of delay.
9. I have heard the arguments of both the parties and perused the record carefully. I have also gone through the authorities as CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 7 of 17 placed on record by both the parties. First of all, I shall deal with the application for condonation of delay filed by revisionists/accused persons.
10. In case titled Collector, Land Acquisition, Anantnag Vs. Mst. Kathiji, AIR 1987 SC 1353: (1987) 2 SCC 107, the Hon'ble Supreme Court has laid down the following principles for the application of Section 5 of the Limitation Act:-
(i) Ordinarily a litigant does not stand to benefit by the lodging an appeal late.
(ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condones the highest that can happen is that a cause would be decided on merits after hearing the parties.
(iii) "Every day's delay must be explained" does not mean that a pendantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
(iv) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
(vi) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
11. In view of the above guiding principles regarding condonation of delay in view of the reasons as stated by the revisionists/accused persons in their application for condonation of delay, the delay in filing the present revision is condoned.
12. Coming now to the merits of the present revision CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 8 of 17 petition. In Subramanium Sethuraman vs State Of Maharashtra & Anr on 17.09.2004, Hon'ble Supreme Court of India has held as under:-
"In Mathew's case this Court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused to enter appearance and satisfy the court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required. In Adalat Prasad's case, this court considered the said view of the court in K.M.Mathew's case and held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasad's case held :
"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 and issuance order amounting to one without jurisdiction, does not laid down the correct law". From the above, it is clear that the larger Bench of this Court in Adalat Prasad's case did not accept the correctness of the law laid down by this Court in K.M.Mathew's case. Therefore, reliance on K.M.Mathew's case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasad's case requires reconsideration be accepted. 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 CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 9 of 17 conclusion. As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused 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".
13. The Hon'ble Supreme Court of India further clarified the situation in so moto writ petition In Re EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881.
"In K. M. Mathew v. State of Kerala & Anr.8, this Court dealt with the power of the Magistrate under Chapter XX of the Code after the accused enters appearance in response to the summons issued under Section 204 of the Code. It was held that the accused can plead before the Magistrate that the process against him ought not to have been issued and the Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. This Court was of the opinion that there is no requirement of a specific provision for the Magistrate to drop the proceedings and as the order issuing the process is an interim order and not a judgment, it can be varied or recalled. The observation in the case of K. M. Mathew (supra) that no specific provision of law is required for recalling an erroneous order of issue of process was held to be contrary to the scheme of the Code in Adalat Prasad v. Rooplal Jindal and Others9. It was observed therein that the order taking cognizance can only be subject matter of a proceeding under Section 482 of the Code as subordinate criminal courts have no inherent power. There is also no power of review conferred on the Trial Courts by the Code. As there is no specific provision for recalling an erroneous order by the Trial Court, the judgment in the case of K. M. Mathew (supra) was held to be not laying down correct law. The question whether a person can seek discharge in a summons case was considered by this Court in Subramanium Sethuraman v. State of Maharashtra & Anr.10. The law laid down in Adalat Prasad (supra) was reiterated.
18. It was contended by learned Amici Curiae that a holistic reading of Sections 251 and 258 of the Code, along with Section 143 of the Act, should be considered to confer a power of review or recall of the issuance of process by the Trial Court in relation to complaints filed CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 10 of 17 under Section 138 of the Act. He referred to a judgment of this Court in Meters and Instruments Private Limited and Another v. Kanchan Mehta11 which reads as follows:
"While it is true that in Subramanium Sethuraman v. State of Maharashtra this Court observed that once the plea of the accused is recorded under Section 252 CrPC, the procedure contemplated under Chapter XX CrPC has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to the 2002 Amendment. The statutory scheme post- 2002 Amendment as considered in Mandvi Coop. Bank and J.V. Baharuni has brought about a change in law and it needs to be recognized. After the 2002 Amendment, 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, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 CrPC which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of CrPC are applicable "so far as may be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible i.e. with such deviation as may be necessary for speedy trial in the context."
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 CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 11 of 17 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 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 creation12. The Judge's duty is to interpret and apply the law, not to change it to meet the Judge's idea of what justice requires13. 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 12 J. Frankfurter, "Of Law and Men:
Papers and Addresses of Felix Frankfurter".
14 Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323 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...
...6. Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.
CR No. 93/2023Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 12 of 17
7. Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.
14. Applying the aforesaid principals of law on the facts and circumstances of the case, it is crystal clear that the Ld. Trial Court has passed the summoning order dated 18.05.2022 and dismissed the application for discharge of accused no. 2 to 4 vide order dated 28.11.2022 correctly. In the case u/s 138 NI Act, the summary trial procedure has been adopted and in such kind of cases, the trial court has no power to review or recall the order of the issue of the summons to the accused persons or discharge the accused persons. In the summary trial cases, there is no power with the court to review the order or recall the order. Accused persons can not seek discharge in a summary triable case, it has been specifically held in Subramanium Sethuraman's case as discussed in preceding paragraphs.
15. Further, the present court have to keep in mind that revisional jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is manifest error of law and consequently there has been a flagrant miscarriage of justice. In Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
CR No. 93/2023Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 13 of 17 "9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
16. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
17. In view of the aforesaid discussion, it is crystal clear that in revisionist powers, the present court can only see that whether the order is illegal or it has led to miscarriage of justice. As I have discussed earlier, it was held in Adalat Prasad Case's that order of taking cognizance, issuance of summons and the discharge of accused can only be subject matter of a proceedings under section 482 of the code as the district courts do not have CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 14 of 17 the inherent power. The revisionists/accused persons cannot be discharged only on hearing argument on the stage of serving upon notice under Section 251 of the Cr.P.C and no proceeding against the accused persons can be dropped under Section 258 of the Cr.P.C. The law of land on this aspect is quite clear. The Hon'ble Supreme Court of India in Subramanium Sethuraman vs. State of Maharashtra & Ors (2004) 13 SCC 324 has categorically ruled that "issuance of process under Section 204 is a preliminary step in trial contemplated in Chapter 20 (Section 251 to 259) Cr.P.C and is, therefore, an interlocutory order, the same cannot be reviewed, reconsidered or recalled by the Magistrate. Only remedy available to an aggrieved accused is the extraordinary remedy under Section 482 and not by way of application to recall the summons or to seek discharge. The later not to be contemplated in the trial of a summon case. (Adalat Prasad's case (2004) 7 SCC 338). Once plea of accused is recorded under Section 252, the procedure contemplated under Chapter 20 has to be followed which is to take the trial to its logical conclusion. The Hon'ble Supreme Court of India in Re:
Expeditious Trial of Cases under Section 138 of the NI Act suo moto writ petition (Crl. No. 2/2020) decided on April 16, 2021 has also categorically ruled that the judgements of the court in Adalat Prasad (supra) and Subramanium (supra) had interpreted law correctly and reiterated that there is no inherent power of the trial courts to review or recall or to reviews of summons. The Hon'ble High Court of Delhi in Court on its own motion vs. State judgment delivered on 20.04.2022 has categorically ruled CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 15 of 17 that 'the Court of a Magistrate do not have the power to discharge the accused upon his appearance in the court in a summoned trial case based upon complaint in general and particularly in a case under Section 138 of the NI Act, once cognizance has already been taken and process under Section 204 issued.
18. The present Court is of the opinion that the Ld. Trial Court has rightly taken into consideration the law on the issue and has applied its judicial mind while passing the impugned order, taking into consideration, the material on record, while coming to the conclusion of issuance of summons against all the accused persons. The present court has the highest regard to the authorities filed but they do not apply to the facts and circumstances of the case.
19. It cannot be said at this stage that the conclusion arrived at by the Ld. Trial Court is unreasonable or unjustified calling for the interference by the present Court in exercise of revisional jurisdiction. I do not find any infirmity or flaw in the impugned order passed by the Trial Court. Accordingly, the revision petition is dismissed.
20. Revision is accordingly disposed of as dismissed.
21. Nothing said herein shall tantamount to have effect on the merits of the case. Trial Court record be sent back alongwith the CR No. 93/2023 Anil Kumar Goel and Ors Vs. Devi Dayal Garg Page No 16 of 17 copy of this judgment.
22. After necessary formalities, revision file be consigned to Record Room.
Announced in the open court (Ambika Singh)
on 19th October, 2023 ASJ-02/THC, West/ND
19.10.2023
CR No. 93/2023
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