Delhi District Court
Smt. Preeti Gupta vs Sh. Chirag Garg on 25 February, 2012
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No.130/11
Unique Case I.D. No.02402R0291962011
Date of Institution :26.09.2011
Date of Arguments :23.02.2012
Date of Order :25.02.2012
Smt. Preeti Gupta
Revisionist
Versus
Sh. Chirag Garg
Respondent
ORDER
This order will disposed of a revision petition filed against order dated 20.05.2011 passed by Sh. Gajender Singh Nagar, Ld. M.M., Karkardooma Courts, Delhi.
2. I have heard arguments of Ld. Counsel for respondent on the revision and perused file and trial court record. I do not have benefit of hearing arguments of Ld. Counsel for revisionist as counsel for revisionist failed to address arguments inspite of ample opportunity afforded C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 1 of 9 to him.
3. On perusal of impugned order I find that Ld. M.M. opined that there was a prima facie case and sufficient material available on record for summoning accused Nos.1 to 4 for the offence punishable u/s 138, the Negotiable Instrument Act, here in after referred to as the Act. Accordingly, accused persons, including the revisionist, were ordered to be summoned for the said offence. Having aggrieved of that order one of the accused i.e. revisionist filed present revision.
4. The impugned order has been assailed on the grounds, inter alia, that only drawer of the cheque is liable u/s 138 of the Act. The revisionist was initially appointed as Director on 28.03.2005 and he resigned on 16.01.2006 before the date of issuance of alleged cheque. Respondent/accused was neither responsible for the business of the firm nor he issued the cheque. The respondent was summoned without speaking order and without disclosing for what offence he was summoned. Ld. M.M. summoned him arbitrarily on the basis of his whims and fences without following the procedure as established under the law ignoring the fact that liberty of a person was jeopardized. It has been prayed that C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 2 of 9 revisionist/accused is entitled for discharge.
5. It has been argued on behalf of respondent that order of Ld. M.M. is just, legal and proper and revision is liable for dismissal. It has also been argued that impugned order is an interlocutory order and therefore, revision against the impugned order/summoning order is not maintainable before Additional Sessions Judge and the only remedy available with the revisionist is to approach the Hon'ble High Court.
6. In support of his contentions, Ld. Counsel for revisionist relied on a case Harinder Dhingra v. State and Anr., 2 (2007) BC215 wherein Delhi High Court quashed the summoning order against the revisionists on the ground that cheque in question was issued by the revisionist and there was no transaction between the complainant and the revisionist.
7. Counsel for revisionist further relied on a case Girish Saxena v. Praveen Kumar Jain and Ors., 2007(2) ALD (Cri) 7, III (2007) BC363 wherein Delhi High Court quashed the proceedings against the appellant/revisionist on the ground that petitioner/revisionist was neither the drawer of the cheque nor it was alleged that he was partner or proprietor of firm when cheque got dishonoured or he was C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 3 of 9 the person responsible for non payment of cheque amount.
8. Counsel for revisionist further relied on a case K. Ramakrishna And Ors. v. State of Bihar And Other, (2000) 8 SCC 547 wherein the Supreme Court observed that:
"On facts on a perusal of FIR, the final report under Section 173 of the Code of Criminal Procedure and all other documents accompanying it, no case is made out against any of the appellants and the pendency of the proceedings against them before the Magistrate is an abuse of the process of court. The appeal is allowed and the order of the High Court dated 08.04.1997 and Magistrate dated 06.07.1996 are quashed and the appellants discharged in terms of Section 239 of the Code of Criminal Procedure."
9. Counsel for revisionist further relied on a case Sanjay Banaik v. State and Anr., 2008(106)DRJ93 wherein the Delhi High Court discharged the petitioner observing that he was not connected with the offence.
10. Counsel for revisionist further relied on a case Kamana Gupta v. N.C.T. of Delhi, 2001(2)JCC61 wherein the Delhi High Court set aside the summoning order and observed that:
"Therefore, the company or its proprietor, the petitioner herein, cannot be prosecuted for the offence under Section 138, NI Act. The drawer of the cheque alone and no other person except in the contingency mentioned in C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 4 of 9 Section 141 of the NI Act is liable to be prosecuted under Section 138 of the NI Act."
11. Counsel for revisionist further relied on a case Ravinder Goel and Anr. v. State and Anr., MANU/DE/7031/2007 wherein Delhi High Court quashed the summoning order on the ground that trial court used the stereotyped format with particulars filled at appropriate places, in hand and signed by the Magistrate and thus the trial court did not apply its mind.
12. Counsel for revisionist further relied on a case J.B. Garg v. State and another, 2006(2) DCR 569, wherein, the Delhi High Court quashed the summoning order against the revisionist/petitioner on the ground that there were no averments in complaint that petitioner was in charge and responsible for conduct of business of society.
13. On the other hand counsel for respondent in support of his arguments relied on a case M/s Hindustan Cables Ltd. and others v. State Govt. of NCT of Delhi and others, 2008(2) RCR (Criminal) 878 wherein Delhi High court observed that:
"28. A question as to whether a magistrate after issuing process could recall it. It is now settled in Adalat Prasad v. Rooplal Jindal (supra), that he cannot recall the process. The Supreme Court in Subramanium Sethuraman v. State of Maharashtra (supra), held that the only course available to an aggrieved person to challenge the issuance of C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 5 of 9 process under S.204 is by way of a petition under S.482 Cr.P.C."
14. My attention also goes to a case of Vardhman Stamping Pvt. Ltd. v. IMP Power Ltd., (Gujarat), 2007 Cri.L.J. 273, the Gujrat High Court observed:
"6. The Trial Courts issued process after recording verification of the complainant. The respondents challenged the issuance of process in all the criminal cases by preferring eight revision applications under Section 397 of the Code before the City Session Court, details whereof are given herein above. The City Sessions Judge vide his orders dated 24-3-2006 partly allowed the Revision Applications by discharging the accused No. 2 to 4 and terminating the proceedings in criminal cases preferred by the present petitioners.*** And in case of M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd., AIR 2001 SC 3625 : (2001 Cri LJ 4250) the Apex Court has observed as under :
"Para 8 : The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short 'the Code') is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this; if the contention of the petitioner who moved the superior Court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate ? If it would, then the order is not interlocutory in spite of the fact C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 6 of 9 that it was passed during any interlocutory stage.
9. A three Judge Bench of this Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1977) 4 SCC 551 : (1978 Cri LJ 165); laid down the following test : "An order rejecting the plea of the accused on a point which, when accepted; will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2). This was upheld by the four Judge Bench of this Court in V. C. Shukla v. State through C. B. I., AIR 1980 SC 962 : 1980 Suppl SCC 92 : (1980 Cri LJ 690).
10. The above position was reiterated in Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134 : (1999 Cri LJ 1620). Again in K. K. Patel v. State of Gujarat (2000) 6 SCC 195 : (2000 Cri LJ 4592); this Court stated thus (para 12 of Cri LJ) :
"It is well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana (1977 Cri LJ 1891), Madhu Limaye v. State of Maharashtra (1978 Cri LJ 165), V. C. Shukla v. State through C. B. I. (1980 Cri LJ 690). And Rajendra Kumar Sitaram Pande v. Uttam (1999 Cri LJ 1620). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objections raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.***
28. Against the backdrop of the aforesaid discussions this Court is of the considered view that these applications deserve to be allowed, the impugned orders dated 24-3-2006 made by the learned City Sessions Judge in respective Criminal Revision Applications filed by the C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 7 of 9 accused deserves to be quashed and set aside and accordingly they are hereby quashed and set aside. The original order of process issued by the respective Learned Magistrate against all the accused Nos. 1 to 5 in the Criminal Cases mentioned hereinabove are restored and the Trial Courts are hereby directed to decide the same on merits in accordance with law."
15. On considering the rival contentions of counsels for parties in the light of above referred decisions, I come to the conclusion that summoning order/impugned order is an interlocutory order as held in cases Vardhman Stamping Pvt. Ltd. v. IMP Power Ltd., (Gujarat), (supra), and Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd., (supra), therefore, revision is not maintainable as per provisions of Section 397 (2) of the Code of Criminal Procedure.
16. Secondly, the case law relied on by counsel for revisionist referred to here in above will not provide any benefit to the revisionist as the relief to the petitioners were granted by Delhi High Court in those cases and not by the Additional Sessions Judges.
17. Thirdly, the principles of law laid down in case M/s Hindustan Cables Ltd. and others v. State Govt. of NCT of Delhi and others, (supra), are applicable on the facts of present case and therefore the relief prayed by revisionist C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 8 of 9 can only be granted by Delhi High Court.
18. In view of the above reasons and discussion, it is held that revision is not maintainable and therefore, revision is dismissed.
19. Trial court record be returned along with copy of this order.
20. Revision file be consigned to Record Room. Announced in the Open Court on 25.02.2012 (DR. T. R. NAVAL) Additional Sessions Judge-02,East Karkardooma Courts, Delhi C.R. No.130/11 Preeti Gupta v. Chirag Garg Page 9 of 9