Delhi District Court
Sandeep Khanna vs State (Nct Of Delhi) on 6 January, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
REVISION PETITION NO. 501 of 2018
CNR No. DLSE01-005715-2018
IN THE MATTER OF:
Sandeep Khanna,
S/o Shri Pran Nath Khanna,
R/o MA-23, DLF, Phase-III,
Gurgaon, Haryana
.......Revisionist
Versus
1. State (NCT of Delhi)
2. M/s South Delhi Money Chander Pvt Ltd,
M-E-2, Lower Ground,
M-Block Market, (Huts),
Greater Kailash-I, New Delhi-110048
........Respondents
Instituted on : 12.07.2018
Reserved on : 05.01.2022
Pronounced on : 06.01.2022
&
REVISION PETITION NO. 502 of 2018
CNR No. DLSE01-005714-2018
IN THE MATTER OF:
Crl Rev. No.501/2018 Sandeep Khanna Vs State (NCT of Delhi) & Anr
Crl Rev. No.502/2018 Sanjay Khanna Vs State (NCT of Delhi) & Anr Page No. 1 of 7
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.01.06
15:42:07 +0530
Sanjay Khanna,
S/o Shri Pran Nath Khanna,
R/o MA-23, DLF, Phase-III,
Gurgaon, Haryana
.......Revisionist
Versus
1. State (NCT of Delhi)
2. M/s South Delhi Money Chander Pvt Ltd,
M-E-2, Lower Ground,
M-Block Market, (Huts),
Greater Kailash-I, New Delhi-110048
........Respondents
Instituted on : 12.07.2018
Reserved on : 05.01.2022
Pronounced on : 06.01.2022
JUDGMENT
1. Vide this common judgment, I shall decide instant two revision petitions filed by revisionists impugning the order dated 16.04.2018, whereby their joint application for discharge was dismissed by Ld Metropolitan Magistrate-04, NI Act, South East District, Saket Courts in cases bearing CC No. 631100/2016, titled as M/s South Delhi Money Changer (P) Ltd Vs M/s Metaphor Exports Pvt Ltd & Ors.
2. Brief facts relevant and necessary for deciding the present revision can be taken note of: A criminal complaint under section 138 of Crl Rev. No.501/2018 Sandeep Khanna Vs State (NCT of Delhi) & Anr Crl Rev. No.502/2018 Sanjay Khanna Vs State (NCT of Delhi) & Anr Page No. 2 of 7 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.06 15:42:21 +0530 Negotiable Instruments Act, came to be filed by complainant/respondent no.2 herein against the accused no.5 & 6/revisionists and other co-accused no. 1 to 4 with the allegations that accused no.1 company through accused no.2 and on behalf of accused no.2 to 6, issued a cheque for an amount of Rs.9,13,130/- in discharge of their legal liabilities. However, same got dishonoured on presentation with the remarks 'payment stopped by drawer' vide cheque return memo dated 08.04.2014 and despite issuance of demand notice dated 03.05.2014, no payment was made. Thereafter, the criminal complaint was filed against the revisionist and other co-accused for offence under section 138 NI Act.
3. Trial Court record reveals that initially instant complaint was filed before District Courts, Gurgaon, however later on transferred to this District pursuant to Negotiable Instruments (Amendment) Second Ordinance, 2015. Trial court record further transpires that an application came to be filed on behalf of revisionists seeking discharge. Ld Trial Court vide impugned order dismissed the said application of revisionists with following observations :-
"The Court has considered the submissions of both the counsels and carefully perused the file. After the perusal, the following are the reasons for decision of the application:-
(1) The Ld counsel for the accused has relied upon the judgment of Hon'ble High Court of Delhi in Tanmay Mukhopadhyay Vs State & Ors, 2015 (3) JCC (NI) 194, wherein it has been held that at the time of framing of notice, if trial court finds that no case is made out against the petitioner, then the decision of Apex Court in Adalat Prasad vs. Roop Jindal & Ors. 2004 (3) JCCC 1347, will not stand in the way of the trial court to drop the proceedings against the petitioner. It is so said because dropping of proceedings at notice stage cannot possible be equated with recalling of summoning order.
Ld Three Judges Bench of Hon'ble Supreme Court of India in Subramanium Sethuraman vs State of Maharastra & Anr. (2004), reaffirmed the decision given in Adalat Prasad Vs Roop Lal Jindal Crl Rev. No.501/2018 Sandeep Khanna Vs State (NCT of Delhi) & Anr Crl Rev. No.502/2018 Sanjay Khanna Vs State (NCT of Delhi) & Anr Page No. 3 of 7 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.06 15:42:30 +0530 (2004) and held that "there is no provision in Cr.P.C which permits dropping of proceedings U/s 251 of Cr.P.C in Summons Case". The judgment relied upon by the accused have been decided by Benches of lesser strength and is of Hon'ble High Court of Delhi. The accused have been summoning only after perusing the file and documents on record. Therefore, at this stage, the judgment of Apex Court in Subramanium Sethuraman vs State of Maharastra & Anr. (2004) has to be followed wherein it was held that accused cannot be discharged in summon case U/s 251 Cr.P.C.
(2) Secondly, the contention of the accused with respect that they are not the directors and signatories of the cheque are to be proved during trial and through inducement of evidence. In view of the above observations, the application of accused is dismissed."
4. The revisionists are aggrieved with the said order and have assailed the same on various grounds which can be summarized as under :-
i) That the impugned order is against the settled principle of law;
ii) That Ld Trial Court erred in not appreciating the fact that there is no admissible evidence against the revisionist;
iii) That Ld Trial Court failed to appreciate the records available on record as well as facts and circumstances of the case;
iv) That Ld Trial Court failed to appreciate the fact that revisionist had not issued the cheque in question as well as he was neither Director/Incharge nor responsible for day to day affairs of accused no.1 company;
5. Ld counsel for revisionists argued on the line of grounds taken in the instant petition. It was vehemently argued that the impugned order is against the settled principle of law as material averments for fastening the liability upon revisionists with aid of section 141 NI Act is conspicuously missing in the instant case. It was urged that Ld Trial Court failed to appreciate the law laid down by superior courts in catena of judgments that court is not expected to function like a post office and to mechanically frame Crl Rev. No.501/2018 Sandeep Khanna Vs State (NCT of Delhi) & Anr Crl Rev. No.502/2018 Sanjay Khanna Vs State (NCT of Delhi) & Anr Page No. 4 of 7 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.06 15:42:40 +0530 notice but rather is bound by law to find out whether prima facie case is made out against the accused or not. On the strength of these arguments, revisionist seeks setting aside of impugned order.
5A. Ld counsel has relied upon following judgments in support of his contentions :-
a) Tanmay Mukhopadhyay Vs State & Ors, 2015 (3) JCC (NI) 194,
b) Hardeep Singh Vs State of Punjab, 2014 AIR SCC 1400,
c) Girish Saxena Vs Praveen Kumar Ors, 141 (2007) DLT 8,
d) Harinder Dhingra Vs State & Anr, 137 (2007) DLT 231,
e) Kamana Gupta Vs NCT of Delhi Anr, 2001 (2) JCC (Delhi) 61,
f) Narsing Das Tapadia Vs Goverdhan Das Patani & Anr, 2000 (3) ACR 2375 SC,
g) CREF Finance Ltd Vs Shree Shanthi Home Pvt Ltd & Anr, 2005 (3) ACR 2079 SC,
h) N K Wahi Vs Shekhar Singh & Ors, 2007 (1) JCC NI 112,
i) Ashok Sikka & Ors Vs State, (II) AD (DHC) 143,
j) K Srikanth Singh Vs North-East Securities Ltd & Anr, 2007 (IV) AD (CR) SC 357,
k) J B Garg Vs State & Anr, 2006 (3) (JCC) NI 245,
l) SMS Pharmaceutical Ltd Vs Neeta Bhalla & Anr, 2007 (1) JCC (NI) 73
6. Per contra, it was submitted by Ld counsel for respondent no.2 that there is no infirmity in the impugned order and instant petition is liable to be dismissed.
7. I have heard rival contentions and perused the record.
8. The plea of revisionists that Ld Trial Court erred in law by not discharging them, is devoid of any merit as it is settled law that there is no provision for discharge in a 'summon triable' case and once an accused (revisionists herein) is summoned to face trial by a Criminal Court and no challenge being made to such order, the next stage as per scheme of criminal procedure code would be to serve notice upon him and Criminal Court does not have power to discharge an accused in the summon triable case.
Crl Rev. No.501/2018 Sandeep Khanna Vs State (NCT of Delhi) & Anr
Crl Rev. No.502/2018 Sanjay Khanna Vs State (NCT of Delhi) & Anr Page No. 5 of 7
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.01.06 15:42:52
+0530
9. Reliance is placed upon judgment of Hon'ble Apex Court in Amit Sibal vs. Arvind Kejriwal & Ors., (2018) 12 SCC 165, wherein Hon'ble Supreme Court set aside order of Hon'ble Delhi High Court wherein Hon'ble Delhi High Court had held that the Magistrate shall be empowered to discharge/drop the proceedings at the stage of framing notice under Section 251 of the Code, if no case is made out. Hon'ble Supreme Court accepted the contention of learned counsel for petitioner that in a complaint case where summoning order has been issued and the order permitting the respondents to raise such contentions at the stage of framing of notice and directing the magistrate to consider the same and pass appropriate order, is contrary to law.
10. In Subramanium Sethuraman Vs. State of Maharashtra and Anr., Appeal (Crl.) 1253 of 2002 decided on 17.09.2004, Hon'ble three- Judge Bench of Hon'ble Supreme Court observed that the case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case.
11. In the wake of aforesaid settled principle of law, the view taken by Ld Trial Court cannot be faulted with in the instant case.
12. During course of argument, Ld counsel for revisionists urged that though, no challenge to summoning order was made in the instant revision petition, however, that does not deter this court to exercise its revisional jurisdiction for examining the propriety / legality of the summoning order and thereafter correcting it. Trial Court Record reveals that the revisionists in the instant case were summoned by Ld Trial Court in year 2014 whereas the challenge to the said summoning order has come for the Crl Rev. No.501/2018 Sandeep Khanna Vs State (NCT of Delhi) & Anr Crl Rev. No.502/2018 Sanjay Khanna Vs State (NCT of Delhi) & Anr Page No. 6 of 7 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.06 15:43:03 +0530 first time during course of arguments only. Even no challenge to said summoning order was made vide instant revision petition. Therefore, it is evident that the prayer of revisionists on this count is hopelessly time barred and therefore, stands rejected.
13. Before parting, I may hasten to add that the revisionists are not absolutely remediless. If they feel that there is no case against them, nothing stops them from applying for a summary judgment by the Ld. Trial Court.
14. In light of aforesaid discussions, this court finds no valid reasons to interfere in the order dated 16.04.2018 passed by Ld Trial Court. Ld. Counsel for revisionists has failed to point out any patent illegality/ infirmity or jurisdictional error in the impugned order. None of the judgments relied upon by Ld counsel for revisionists come to their aid in the factual matrix of present case.
15. The revision petitions stand dismissed accordingly.
16. TCR be sent back to Ld Trial Court along with copy of this judgment.
17. Both the revision files be consigned to Record Room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.06 15:43:13 +0530 Announced in the open (ANUJ AGRAWAL) Court on 6th January 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No.501/2018 Sandeep Khanna Vs State (NCT of Delhi) & Anr Crl Rev. No.502/2018 Sanjay Khanna Vs State (NCT of Delhi) & Anr Page No. 7 of 7