Delhi District Court
R.P. Malik vs . New Gayatri Cork Industries & Anr. on 19 June, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT)-01,
CENTRAL: ROOM NO.-275, TIS HAZARI COURT COMPLEX, DELHI
R.P. Malik Vs. New Gayatri Cork Industries & Anr.
CC No.668/10
19.06.2014
ORDER
1. Being disposed off vide this order is an application filed by the Accused No.3 for dropping of proceedings against him. Before getting into how maintainable or sustainable the application is, let us briefly recapitulate the facts of the case. At the very outset it is important to flag that this case bears the dubious distinction of being the oldest case in this court and has been moving at a snail pace since its institution in 1998. The case still is at the stage of cross examination of the complainant.
2. In brief the dramatis personae is that - Accused No.1 in this case is M/s New Gayatri Cork Industries, Accused No.2 - is Ms. Asha Soni, purportedly the proprietor of the said firm. Accused No.3 Navin Soni is her son, and the signatory of the cheque, he is stated to have represented himself to be the manager of the firm. Accused No.4 was Mr. Badri Prashad the husband of Accused No.2 Asha Soni, who is claimed to have played a part in the transaction in question.
Now it is the complainant's case that these accused persons entered into an agreement with the complainant on 14.01.1998, agreeing to sell property no. 3, DLF Industrial Area, Moti Nagar and as part consideration for the same received a sum of Rs.15 lakhs in cash from the complainant. The complainant further states that the deal did not materialize as the accused persons did not execute the sale documents in his favour, and later to wriggle out of the deal issued a cheque which forms the subject matter of the present complaint, thereby returning the amount of Rs.15 lakhs received by R.P. Malik Vs. New Gayatri Cork Industries & Anr. 1 them. This cheque was dishonored on presentation with the remarks 'exceeding arrangement'. Now this constrained the complainant to serve a legal notice to the accused and when the same fell on deaf ears, he filed the present complaint in 1998 complaining commission of offences U/s 138 of the NI Act, and Section 403, 406 & 420 of the IPC against the accused.
On this complaint, Cognizance was taken by the Ld. Predecessor of this Court only for offence u/s 138 NI Act, the accused were not summoned for the rest of the offences since basic ingredients of 403/406 & 420 IPC i.e entrustment and cheating were not made out. Accused No.4 was also not summoned as it appeared he had nothing to do with the issuance of the cheque and was simply a witness to the agreement to sell entered into between the complainant and accused no.2. Hence this order set the course clear for proceedings to begin against accused no.1 (proprietorship firm), accused no.2 the sole proprietor and accused no.3, who signed the cheque as the manager of the proprietorship firm.
Notice U/s 251 Cr.P.C. came to be framed against the accused on 25.5.1999 and the matter proceeded for complainant's evidence. On 02.09.2012 accused No.2 Asha Soni-the proprietor of accused No.1 proprietorship firm expired. In this factual background the present application came to be filed for dropping of proceedings qua accused No.3 Navin Soni.
3. Now it is the case of the accused No.3/present applicant that proceedings against him should be dropped since no case is made out against him, in view of trite law that in a case of cheque drawn on account of and on behalf of a proprietorship concern, only the proprietor can be made an accused. In this case accused No.2 who was the proprietor had expired on 02.09.2012 and proceedings against her abated, and since the proprietorship concern has no juristic entity distinct from its proprietor, nothing survives against the present accused and no other person can be R.P. Malik Vs. New Gayatri Cork Industries & Anr. 2 sought to be made vicariously liable for the act of the proprietorship concern, except the proprietor herself. Therefore in sum and substance accused No. 3's argument is that though the cheque has been signed by him, the same has been done only in the capacity of manager or mandate holder of the proprietorship firm and not in his own capacity and the same is clear from a bare perusal of the cheque in question as also the agreement between the complainant and the accused no.2. He therefore states no case is made out against him and proceedings be dropped.
Per contra the complainant in his reply to the application has at the very outset claimed that such an application is not maintainable, since there is no provision that allows the dropping of proceedings at the stage of complainant evidence. He further states that allowing proceedings to be dropped would amount to review of order of summoning and framing of notice. He further states that the application is nothing but a dilatory tactic. On merits he states that the present applicant/accused no.3 was the actual face behind the transaction and as such liable for the offence u/s 138 NI Act. This in a nutshell is the complainant's line of argument.
Learned Counsels for either party have canvassed extensive arguments on the interesting legal questions that have arose in this case and have ably & painstakingly assisted the court in going through the voluminous record and also brought to my attention the relevant precedent on the subject.
At the very outset at the time of arguments itself Learned Counsels for both the parties fairly conceded that Section 258 Cr.P.C., which finds mention in the application of the accused would not apply since the present case is not a case based on police report and is a complaint case. Hence the applicability of Section 258 Cr.P.C. need not be delved upon. The issue of dropping of proceedings therefore has to be examined de hors Section 258 CrPC.
R.P. Malik Vs. New Gayatri Cork Industries & Anr. 3 Be that as it may the application has given rise to the following issues :-
i) What is the consequence of the death of proprietor in case of complaint relating to cheque drawn on account of/by proprietorship concern ?
ii) Whether a person signing a cheque in the capacity of a mandate holder can be held liable personally on dishonor of cheque ?
Iii) Whether an application for dropping of proceedings in a complaint case is permissible at the instance of the accused at the stage of complainant evidence ?
iv) Whether allowing such an application would amount to review of order of framing of notice against the accused ?
Since the issues are all interconnected - a common discussion shall suffice.
4. Cutting to chase - it is undisputed that the agreement to sell (Ex.CW1/A) which forms the basis of monetary liability of the accused firm in this case was entered into by the complainant with the accused No.2 Late Asha Soni, who entered into that agreement in capacity of the proprietor of the accused No.1 firm i.e M/s new Gayatri Cork Industries. It is clear from a bare perusal of the agreement that the same was entered into between Accused No.2 Late Asha Soni and the complainant only. The agreement very conspicuously mentions that present applicant/accused No.3 Navin Soni was appointed as the attorney of the accused no.2 and operated the bank account of the accused no.1 firm as the manager, it was further stipulated that Navin Soni since was acting as the attorney, accused No.2 Asha Soni would be bound by each and every act of the said Mr.Navin Soni. Hence simply put the legal capacity in which the parties transacted may be summed up like this - Accused No.2 (sole proprietor) and Complainant were contracting parties. Accused No.2 R.P. Malik Vs. New Gayatri Cork Industries & Anr. 4 being the principal vis-à-vis Accused No.3 Navin Soni who acted as the manager/agent/attorney holder.
Now when the agreement could not bloom into a full sale, the money received under the agreement was sought to be returned vide a cheque drawn from the account of the accused No.1 firm - which apparently was signed by accused No.3/the present applicant in the capacity of its manager or in other words the mandate holder. In this case the proprietor accused No. 2 has admittedly died. It needs no gainsaying that a proprietorship firm has no legal entity distinct from its proprietor, so on the death of the proprietor the prosecution against the proprietorship firm does not survive. In case of a cheque drawn by proprietorship concern only the proprietor can be made liable. The person signing the cheque on behalf of the proprietorship does not incur any personal liability. It is clear from the agreement to sale which is Ex.CW1/A - which forms the substratum of the complainant case that the jural relationship between the accused No.2 Asha Soni and accused No.3 Navin Soni was that of principal and agent. The latter acting for the firm and accused No.2 who was the proprietor of the firm and not in his personal capacity. With respect to this the Learned Counsel for the complainant has argued that the complainant should be allowed to prove that it was in fact accused No.3 who was the acting mind behind the transaction. This to my mind is not permissible in view of principles of estoppel and also doctrine of conclusivity of documents as engrafted U/s 92 of the Indian Evidence Act. In view of the edict of Section 92 the complainant cannot be allowed to contradict his own documents and consistent stand taken throughout the case. The cheque (Ex.CW1/B), Agreement to Sale dated 14.01.1998 (Ex.CW1/A) and the complaint which form the basis of the complainant's case make it amply clear that the contract of agreement to sell and any liability arising therefrom was between the complainant and accused No.2 Asha Soni inter se. Furthermore the cheque drawn to discharge that liability was also given from the account of accused No.1 proprietorship firm. Hence R.P. Malik Vs. New Gayatri Cork Industries & Anr. 5 the penal consequences emanating from a dishonor of cheque issued to discharge that liability attach only to drawer of the cheque who issues a cheque on an account held by him and not to the manager, who is the present applicant. This position is clear from a bare perusal of the cheque in question. There is no gainsaying that liability U/s 138 NI Act being penal in nature, cannot be fastened lightly. It is a cardinal principle of criminal law that a provision imposing penal liability has to be construed strictly. The breadth of Section 138 NI Act cannot be stretched artificially so as to include a manager or a person holding mandate to sign cheque on behalf of proprietorship firm. A person signing the cheque clearly in the capacity of a manager is different from the drawer of the cheque who has drawn the cheque on an account maintained by him. In view of the discussion above it is quite clear that accused no.3 in this case is not the drawer of the cheque, he cannot be held to be liable on a bare reading of Section 138 of the NI Act. One of the basic ingredients of an offence U/s 138 NI Act is that the person must have drawn the cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account. In view of the aforesaid discussion, the proceedings cannot be continued after the death of proprietor in case of a cheque drawn by proprietorship concern.
5. The Learned Counsel for the complainant has attempted to argue that accused no.3 was incharge of the day to day affairs of the proprietary concern and alternatively he being the son of accused no.2 was responsible for the transaction and amount repayable and therefore should be made liable for the act of the accused no.1 proprietorship concern. Framed differently what the Learned Counsel for the complainant suggests is that the accused should be made liable vicariously liable for something that was the act of the firm since he was the actual man behind the transaction. Now this contention though attractive at first blush - crumbles on a closer scrutiny. A proprietary concern is not a company or firm or association of individuals R.P. Malik Vs. New Gayatri Cork Industries & Anr. 6 within the meaning of Section 141 of the NI Act. A proprietary concern, stands absolutely on a different footing. A person may carry on business in the name of a business concern, but he being proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a Company. Company in terms of the explanation appended to Section 141 of the Negotiable Instruments Act, means any body- corporate and includes a firm or other association of individuals. Hence the question of vicarious liability does not arise. A sole proprietorship concern is excluded from the purview of this Section. In the eyes of law, a proprietorship concern is not a separate juristic entity and cannot be distinguished from its proprietor. Hence the veil that is pierced by the court in case of companies cannot be done in the case of a proprietorship concern, as a proprietorship concern is not a separate entity like a company whose veil has to be uplifted in order to understand what goes behind. In case of a proprietary concern - what one sees is what is there. A proprietorship concern is nothing but the proprietor.
6. In this regard reference may be made to the judgment of the Hon'ble Supreme Court in Raghu Lakshminarayanan v. Fine Tubes (2007) 5 SCC 103, wherein the position of legal liability of a proprietorship firm was brought out quite succinctly in the following words :-
"The distinction between partnership firm and a proprietary concern is well known. It is evident from Order XXX Rule 1 and Order XXX Rule 10 of the Code of Civil Procedure. The question came up for consideration also before this Court in M/s. Ashok Transport Agency v. Awadhesh Kumar and another [(1998) 5 SCC 567] wherein this Court stated the law in the following terms:-
"6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is R.P. Malik Vs. New Gayatri Cork Industries & Anr. 7 not a juristic person but Order XXX, Rule 1, CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX, which make applicable the provisions of Order XXX to a proprietary concern enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX, Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business "in sofar as the nature of such case permits." This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case."
7. The Decision of the Hon'ble High Court of Delhi in M.M.Lal v. State NCT of Delhi 2012 (4) JCC 284 (NI) may also be referred wherein in similar circumstances an employee of a proprietorship concern was acquitted of charges u/s 138. Relevant excerpts from the judgment are as follows :-
"4. During the trial, respondent no. 2 has succeeded in showing that he was not the sole proprietor of M/s. Tina Toni Creations. Shri Manmohan Dhawan was the proprietor. Trial Court has noted that Manmohan Dhawan was not impleaded as proprietor of said firm.
R.P. Malik Vs. New Gayatri Cork Industries & Anr. 8 Respondent no.2 Gopal was, thus, not liable to pay the cheque amount.
5. It is well settled that a sole proprietorship firm has no separate legal identity and in fact is a business name of the sole proprietor. Thus any reference to sole proprietorship firm means and includes sole proprietor thereof and vice versa. Sole proprietorship firm would not fall within the ambit and scope of Section 141 of the Act, which envisages that if the person committing an offence under Section 138 is a company, every person who, at the time of offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Company includes a partnership firm and any other association of individuals. The sole proprietorship firm would not fall within the meaning of partnership firm or association of individual. Vicarious liability cannot be fastened on the employees of a sole partnership firm, by taking aid of Section 141 of the Act, inasmuch as, no evidence has been led to show that the business was run by the respondent no.2
6. Learned counsel for the petitioner has contended that DW1 has produced 'Letter of Mandate' executed by the proprietor of M/s Tina Toni Creations, which shows that the respondent no.2 was authorized to operate bank account of the firm. In my view, "Letter of Mandate" issued by the sole proprietor in favour of respondent no. 2 will not make him personally liable to pay the debts of the firm. A perusal of Mandate clearly indicates that the respondent no.2 was only given authority to draw bills, cheques etc. in the said account but any liability on that count was to be that of sole proprietor. The clause to this effect reads thus "This mandate if not revoked in my/own life time shall be binding upon my/own estate and effects and any legal representatives R.P. Malik Vs. New Gayatri Cork Industries & Anr. 9 unless a written notice of my/own death is given to you". That apart mandate binds the parties to the letter of 'Mandate', that is bank and the sole proprietor and not the outsiders".
8. One may, for guidance, also turn to the decision in the case of Ravi Chandran v. Subramanium IV (2006) BC 54 (Madras High Court):
"9. Section 138 of the Act is clear that the person liable to answer this penal provision is only the person, who had drawn the cheque, which could be seen from the opening words "where any cheque drawn by a person on an account maintained by him....." thereby indicating, the person liable to be dealt with under Section 138 of the Negotiable Instruments Act or the person answerable under Section 138 of the Act must be the person, who had drawn the cheque and who is having the account, in which account the cheque was drawn and not others. In this case, as seen from the materials available on record, the cheque was drawn by M/s Southern Biologicals. The account holder is M/s. Southern Biologicals. The accused respondent is only a mandate holder, who was competent and authorised to sign on behalf of the account holder or on behalf of the drawer. Therefore, the mandate holder certainly will not come within the meaning of a person "cheque drawn by a person"
or "on an account maintained by him". This being the position, the complaint ought to have been filed against the owner, or proprietor of M/s. Southern Bilogicals, who was maintaining the account, who had drawn the cheque, though it was signed by the mandate holder. In this context, we have to further see, who is the mandate holder, what is his duty.
10. "Mandate" means in the commercial circle as per the law lexicon: A mandate is a contract by which a lawful business is committed to the management of another, and by him undertaken to be performed without reward.
R.P. Malik Vs. New Gayatri Cork Industries & Anr. 10 It is also further seen from the said definition, a mandate is an act by which one person gives power to another to transact for him and in his name, one or several affairs. From the above definition, it is crystal clear that the role of the mandate holder is limited. In the sense, obeying the mandate or any of the member and in this way alone, the accused in this case had signed in the cheque as mandate holder and therefore, as such, he cannot be held responsible for the non-payment or the amount.
11. In view of the specific provisions available under Section 135 of the Act, the mandate holder is not the drawer in the real sense, as it should be understood for the purpose of Section 138 of the Act and it is also an admitted position, that the mandate holder is not the account holder, though he is the authorized signatory on behalf of the account holder."
9. Also being referred are two other decisions by Hon'ble Madras High Court in the cases of Surendra Mal Mehta and Deepak v. Gillette India Limited (2006) 133 CompCas 412 & N.Gopalan v. K.Udhayakumar, Crl. O.P. No. 446/2009 dated 29.06.2009 wherein the mandate holder was held not liable for offence u/s 138 of the NI Act and proceedings were quashed.
10. These judgments are squarely applicable to the facts of the present case. As aforesaid it is clear from the entire case of the complainant that in the agreement as well as the issuance of the cheque, the only surviving accused (Navin Soni) acted as nothing but the manager/agent/attorney mandate holder for the accused proprietorship firm and not in his personal capacity. This fact being an admitted position is all that is required to decide the present case in my view. As even if it is assumed for the sake of argument that the complainant succeeds in proving (although he is barred from doing so in view of discussion aforesaid) that accused no.3 was the actual hand of this transaction and mother a mere stamp head who signed R.P. Malik Vs. New Gayatri Cork Industries & Anr. 11 the agreement, even then liability u/s 138 can be fastened only on the account holder of the cheque which in this case is the proprietorship firm - whose proprietor is the mother. A mandate holder signing the cheque on behalf of mother does not incur any liability on account of that cheque. This is clearly not a case where there is any doubt and the complainant still does not dispute as to the identity of the proprietor. It has been argued quite vehemently that this view would expose the complainant to hardship since accused no.2 has died, however such emotive considerations do not detract the court from following the correct and settled legal position especially when it's a matter of criminal liability. The fact that accused no.3 is the son of now deceased accused no.2, is immaterial at-least for the purposes of Section 138 as the liability attaches only to the drawer of the cheque holding the account. Liability in a criminal case, unlike a civil case, cannot devolve on Legal Representatives on the death of the defendant. The complainant has no remedy atleast in this case qua accused no.3.
11. Even otherwise keeping in view the policy of Section 138 and the fact that Section 138 trials were made summary triable with a view to facilitate the expeditious disposal of these cases the proceedings do not deserve to continue. If the present case which is more than 15 years old, which in my view does not survive on the death of the proprietor, and can be decided on this purely legal point is allowed to perpetuate on the premise that evidence is to be led in the case, would be an exercise in futile since in any case the case of the complainant even if taken at its face value would not succeed in view of the clear legal position on this aspect and an acquittal is imminent. A matter that is ill-fated should not be allowed to clog the dockets of the already extremely overburdened Magisterial Courts, the working of which, has been brought to a grinding halt due to large pendency of 138 cases.
Furthermore the record of the case speaks volumes that the parties before the court are embroiled in multiple litigation and the present case is R.P. Malik Vs. New Gayatri Cork Industries & Anr. 12 used as a means wherein contradictions in evidence can be obtained to be used in other cases. The evidence on record is voluminous, the matter is at the stage of evidence since 1999 although the question in this case as formulated earlier is a fairly limited and simple one. The parties cannot be allowed to perpetuate this litigation in order to steal a march over each other in other cases. The proceedings deserve to be discontinued.
Accordingly the first two questions are decided in favour of the applicant - and it is held that a case based on cheque drawn on account of proprietorship firm - would abate on the death of the sole proprietor and does not survive against a person merely signing the cheque as the mandate holder/manager or attorney. Hence in view of this finding - allowing the case to go on would not only be against the ends of justice but also a wasteful exercise.
12. The learned counsel for the complainant has argued that there is no specific provision under which such an application can be moved and dropping of proceedings be sought. He has placed reliance on the decision of the Hon'ble High Court in Hora Sales Agencies v. Quest Components (P) Ltd. 2006 (86) DRJ 417.
In my view a meaningful reading of the judgment reveals that it does not advance the case of the complainant. Every decision has to be read secundum subjectum materiam i.e in light of its peculiar factual scenario and not as a statute or Euclid's theorem. It is not discernible from the judgment as to exactly what were the allegations against each accused at the trial court level and the role attributed to them, and therefore the judgment, which ever way one reads it, cannot be said to have laid down as an absolute preposition of law ruling out remedy in all cases where a person other than R.P. Malik Vs. New Gayatri Cork Industries & Anr. 13 the proprietor have been sought to be made an accused in a 138 case where cheque is drawn on account held by proprietorship firm. In my humble opinion the precedent referred to above in paras 6 to 9, is more specifically applicable to the facts of the present case where indisputably the sole proprietor has died and the proceedings are sought to continued against the mere mandate holder or attorney who signed the cheque on behalf of the firm.
The non mentioning of a provision in the application for dropping of proceedings need not detract the court from applying the correct law. As outlined at the very beginning of this order - Section 258 does not apply since the present case is a complaint case.
Hence the power to drop proceedings or discontinue the case when it is an exercise in futile has to be found elsewhere. In this regard the decision of Hon'ble Gujarat High Court in Urban Co-OP Credit Society v. State of Gujarat & Anr 2003, Cri LJ 3292 dated 21.03.2003, can be referred to, wherein it was held that :-
"12. It is true that Section 258 of the Code applies to summons cases instituted otherwise than upon a complaint. In such cases, only the Court can stop the proceedings. It is true that in the present case, the petitioner has filed a private complaint and, therefore, there cannot be any dispute that the provisions contained in Section 258 of the Code would not apply. This does not mean that the trial Court cannot acquit an accused in a summons triable case in the middle of the trial or .... regarding evidence. On a bare reading of the complaint, if no offence is made out and yet the process has been issued, then the accused can make a request to the Court concerned that since no offence is made out, the accused may be acquitted. The Court can hear the parties and pass appropriate orders.
R.P. Malik Vs. New Gayatri Cork Industries & Anr. 14 Similarly, in a case wherein the complaint is time- barred, the accused can raise such a plea and get appropriate order from the Court concerned if factual disputes do not arise. These are not orders under Section 258 of the Code. Any way, in a matter before the Court, if the court finds that there is no reason to proceed ahead with the trial, then the court can pass appropriate order after hearing the parties. The only requirement is that the Court should be able to decide and dispose of the issue in question on reading the complaint and on accepting the averments in the complaint to be true at that stage. When there is requirement of any evidence to deal with a fact- situation and if any disputed question of fact arises, then in that event, the Court may not be in a position to deal with and decide such application in the middle of the trial".
In the present case too the case can be decided on the legal discussion as above and no factual disputes are required to be sorted out and the proceedings may be dropped when they are not sustainable in law.
The absence of a specific provision allowing dropping of proceedings need not always detain the court from doing what is right. An analogy can be drawn to a situation where the accused dies. Now the Code of Criminal Procedure makes no specific provision for abatement of proceedings on the death of the accused at the stage of trial. And none is required as it springs from common sense that when the accused expires nothing remains to be decided and the proceedings should abate. In the present case when the sole proprietor dies - the case abates and nothing survives for consideration. This is not dependant on there being a specific provision to this effect.
Learned Counsel for the complainant has argued that this would amount to invoking inherent powers which as per Section 482 of the CrPC R.P. Malik Vs. New Gayatri Cork Industries & Anr. 15 are exercisable only by the High Court and not the trial Court. With respect to this I am in complete agreement that Section 482 of the CrPC does not save the inherent powers as regards the trial Court. However this does not mean that a trial court is powerless in discontinuing a prosecution that would amount to abuse of the process of law. I'd like to draw strength in this regard from the Doctrine of Implied Powers. When power is given expressly to do a particular act, it also comes with the power to do all that is necessary to make the first act effective and meaningful. In my view when the Trial Court is to conduct a trial it always can be said to have the power to ensure trial is meaningful and not a wasteful exercise. In this regard I may also touch upon the judicial trend of expansion of powers of the court u/s 251 CrPC wherein now the Magistrate at the stage of explaining the substance of the accusation to the accused in a summons case - has the power to drop proceedings in case the offence is patently not made out. Though there is no specific provision providing for a discharge in a summons case akin to that in warrants cases, the Hon'ble High Court of Delhi in Urrshila Kerkar Vs. Make My Trip (India) Private Ltd. CRL.M.C.2598/2012 & Crl.M.A. 13279/2012, has read in that power within Section 251 to make it incumbent of the trial court to apply its mind at the stage of framing of notice to find out whether prima facie case is made out or not. The underlying basis of this decision needs to be discerned and respected i.e checking meritless complaints at the very threshold.
The learned counsel for the complainant placing reliance on the judgment by the Hon'ble Supreme Court in Adalat Prasad v. Roop Lal Jindal, 2004 7 SCC 338 has argued that dropping of proceedings at this stage would amount to review. There is no doubt to the legal preposition as laid down in the judgment, however the present decision to drop proceedings does not amount to review of the order of summoning or framing of notice since it is only after the framing of notice that the accused R.P. Malik Vs. New Gayatri Cork Industries & Anr. 16 no.2 has died and by this subsequent event the proceedings abate and nothing survives for consideration. The case can be decided on this purely legal point.
With the above reasoning - In my view in the present case proceedings can be said to have abated on the death of accused no.2 and do not survive against accused no.3. Hence in light of the foregoing reasons proceedings against the proceedings against the only surviving accused (accused no.3) are dropped.
(BHARAT CHUGH) MM-(NI Act)-(Central-01)-THC/Delhi 19.06.2014 RAJEEV R.P. Malik Vs. New Gayatri Cork Industries & Anr. 17