Delhi District Court
G M Ajwani vs Indo Asian Marketing Ltd on 7 September, 2007
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IN THE COURT OF SH S P GARG ADDL SESSIONS JUDGE
NEW DELHI
C.R. No. 22/04
G M Ajwani, Director
Ajwani Investment & Finances Pvt Ltd
B-14, Tarang Apartments
Patparganj, I P Estate
Delhi Petitioner
Vs.
Indo Asian Marketing Ltd
A-59, Okhla Industrial Area Phase-II,
New Delhi Respondent
ORDER
Present revision petition has been preferred by the petitioner against the order dt. 5.3.04 passed by Sh S K Aggarwal, ld MM whereby the application of the petitioner for discharge and recall of the summoning order was dismissed.
2. Revision petition was admitted for hearing. Notice of the revision petition was given to the respondent. Trial court record was summoned.
3. I have heard the ld counsel for the petitioner and ld counsel for the respondent and have gone through the file.
4. On perusal of the trial court record, it reveals that complaint case for the commission of the offence U/s 420/406 IPC was filed by the respondent before the ld MM. In the said complaint, in his pre-summoning evidence the respondent examined CW1 Himanshu and CW2 Parsuram Baranwal. After hearing the ld counsel for the respondent, vide order dt 24.8.01, ld MM found prima facie offence U/s 420 IPC to have been made out 2 against the petitioner. Accordingly petitioner was summoned for 23.5.02. Thereafter the petitioner moved the application dt 21.3.03 for discharge and recall of the summoning order. The same was dismissed by the ld trial court vide impugned order dt 5.3.04.
5. Contention of the ld counsel for the petitioner is that there was no sufficient material before the ld trial court to proceed against the petitioner for the commission of the offence U/s 420 IPC. The petitioner had given cheques in question only as 'security'. The cheques in question were blank and were filled up by the respondent subsequently. The cheques were presented after inordinate delay of 7 years. The complaint is barred by U/s 5 of the Limitation Act. No criminal offence to take cognizance against the petitioner is attracted in this case.
6. Ld counsel for the respondent has controverted the arguments and has stated that the petition filed by the petitioner is not maintainable in view of the law laid down by the Hon'ble Supreme Court in the case reported in Adalat Prasad Vs Roop Lal Jindal (2004) 7 SCC 338.
7. On considering the arguments and perusing the trial court record, I am of the view that there is no illegalilty or material irregularity in the impugned order passed by the ld trial court whereby the application moved by the petitioner for discharge and recall of the summoning order was dismissed. As per the law laid down in the case of Adalat Prasad (supra), The ld trial court has no inherent power to recall its summoning order. So on that account the order of the ld trial court to recall the order does not suffer from any irregularity.
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8. Besides this, the ld trial court summoned the petitioner as it prima facie found the petitioner to have committed the offence U/s 420 IPC on the basis of pre-summoning evidence adduced before it. In its pre- summoning evidence the respondent adduce evidence to prima facie show that the cheques in question for the amount more than 18 lacs were issued by the petitioner for the articles purchased by him from the respondent and on presentation the said cheques were dishonoured. At the stage of consideration of issuance of process U/s 204 CrPC, the ld trial court is to take only prima facie view of the matter of the evidence adduced before it. In the petition the petitioner has admitted issuance of the cheques in favour of the respondent only plea of the petitioner is that these cheques were issued as security and were blank at the time of its handing over to the respondent. All these contentions of the petitioner can't be decided at this stage without giving an opportunity to the respondent to rebut it. The matter requires investigation and consideration during trial.
9. The court is yet to hear arguments of both the parties on consideration of charge and the petitioner will be at liberty to address all these arguments before the ld trial court at that stage.
10. Considering all the facts and circumstances of the case, I find no merit in the present revision petition filed by the petitioner and the same is dismissed. Trial court record be sent back with copy of order.
11.File be consigned to record room.
Announced in the open Additional Sessions Judge
Court on 7.9.07 Patiala House New Delhi
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