Delhi District Court
Ramesh Chand vs Sunita Kaul on 2 April, 2024
IN THE COURT OF MS AMBIKA SINGH, ASJ-02/ WEST
DISTRICT, TIS HAZARI COURTS, NEW DELHI
Criminal Revision No. 92/2024
CNR No.DLWT01-001485-2024
(1) RAMESH CHAND
S/o Kishan Lal
R/o E2A, Near Rajouri Market,
Rajouri Garden, Delhi-110027.
(2) JAGAN NATH
S/o Kishan Lal
R/o A-2/36, Rajouri Market,
Rajouri Garden, Delhi-110027.
(3) ANIL KUMAR
S/o Kishan Lal
R/o D-46-48, Bhagat Singh Road,
Adarsh Nagar, Delhi-110033.
(4) SUMIT DANGER
S/o Puran Chand
R/o H.No.16/56, 3rd Floor,
West Punjabi Bagh, Delhi-110026
(5) RAJEEV DANG
S/o Kishan lal
R/o Plot No. 20, Road No.12,
East Punjabi Bagh, Delhi-110026
.....Revisionist
v.
(1) SUNITA KAUL
Cr. Rev No.92/2024
Ramesh Chand & Ors. vs. Sunita Kaul Page No. 1 of 14
W/o Rajender Kaul
R/o 178, 2nd Floor, State Bank Nagar,
Paschim Vihar Wes, Delhi-110063.
.....Respondent
Date of institution of the cases : 22.02.24
Date when the cases reserved for order : 27.03.24
Date of announcement of order : 02.04.24
JUDGMENT
02.04.24
1. This criminal revision petition assails the order dated 11.01.2022 summoning order (hereinafter to be referred as the impugned order) passed by the Ld. MM, N.I. Act (Digital Court) in case Ct. Case No.2994-2021 in case titled as Sunita Kaul Vs. Ramesh Chand & Ors.. A prayer has been made to set aside the said impugned order and quashing of entire proceedings pending before the Ld. MM.
2. Brief facts as stated by the revisionist are that the instant Revision Petition is arising out of the impugned summons dated 11.01.2022 issued to the Revisionists in Ct. Case No. 2994-2021 which was filed by the Respondent under Section 138/142 of the Negotiable Instrument Act, 1881 (as amended upto date) against the Revisionists before the Learned Metropolitan Magistrate, (NI act) (West), Tis Hazari District Courts, Delhi. It is alleged that the respondent herein approached the revisionists for her elder daughter's wedding functions which was schedules for 02.05.2020 to 04.05.2020 and a banquet agreement dated 11.11.2019 was entered into with the respondent. Further it is Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 2 of 14 alleged that she made a payment of Rs. 10,00,000/-(ten lakh rupees) as advance for the said wedding function. Due to outbreak of COVID-19, the respondent along with her husband approached the revisionists for refund and revisionist no.1 on behalf of other revisionists issued cheque bearing no.204742 dated 21.06.2021 for Rs. 7,00,000/- drawn on Punjab National Bank and that alleged cheque was dishonoured and the aforesaid complainant case was filed. On 11.01.2022, the Ld. Trial Court took cognizance of the said complaint and was pleased to issue summons to the revisionists. On 15.12.2023, the revisionists came to know about the existence of the abovesaid complaint when the police officials visited the hotel of the company for execution of process u/s 82 Cr.P.C Also, the revisionists moved an application in the Ld. Trial Court on 02.01.24 for cancellation of 82 Cr.P.C proceedings and the same was allowed. On 18.01.24, the revisionists were supplied with the copy of the complaint along with annexures thereof. Hence, it is prayed that the proceedings under Section 138/142 of the Negotiable Instrument Act emanating from the Complaint Case be quashed, as it is without jurisdiction, untenable and liable to be set aside.
3. Revisionist has assailed the impugned order dated 11.01.2022 on the ground that the impugned summons is bad in law. The complaint filed by the Respondent under Section 138/142 of the Negotiable Instruments Act, 1881 against the Revisionists is not maintainable. Revisionist state that if the reliefs as sought by the Revisionists are not granted, grave and irreparable harm, injury and/or loss will be caused to the Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 3 of 14 Revisionists and on the other hand if the same are granted no harm would be caused to the Respondent and revisionists feel that they have been cheated and defrauded by the respondent with false promise and assurance. It is further prayed that the present petition be allowed and the said impugned order be set aside, the summons dated 11.01.2022 issued to the Revisionists. On 15.12.2023, the revisionists came to know about the existence of the abovesaid complaint when the police officials visited the hotel of the company for execution of process u/s 82 Cr.P.C. Also, the revisionists moved an application in the Ld. Trial Court on 02.01.24 for cancellation of 82 Cr.P.C proceedings and the same was allowed. Orally it is also prayed that the delay in filing the present revision petition be condoned as the revisionists were not aware of the proceedings in the Ld. Trial Court.
4. Notice of the revision petition was issued to the respondent on which the respondent entered her appearance. TCR was also summoned.
5. I have heard the arguments and perused the record carefully.
6. Ld. Counsel for the revisionist orally submits that the delay in filing the present revision be condoned as the revisionist was not aware of the present case proceedings.
7. Per contra, Ld. Counsel for respondent/complainant has argued that the present revision petition and oral submissions Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 4 of 14 of condonation for delay is not maintainable as the revisionists failed to point out any infirmity in the impugned order dated 11.01.2022. Also, stated that 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. Also, Ld. Counsel has relied upon the Judgment by the Hon'ble Supreme Court of India in Siby Thomas Vs. Somany Ceramics Limited in Crl. Appeal No. 3139/2023, in GAMBHIR SINH R.DEKARE VS. FALGUNBHAI CHIMANBHAI PATEL In Crl. Appeal No. 433/2013.
8. First of all, I shall deal with the application for condonation of delay filed by appellant.
9. 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 Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 5 of 14 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."
10. In view of the above guiding principles regarding condonation of delay in view of the reasons as stated by the appellant in his application for condonation of delay, the delay in filing the present appeal is condoned.
11. Coming now to the merits of the present revision 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 Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 6 of 14 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 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".
12. 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 Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 7 of 14 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 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 Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 8 of 14 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 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 Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 9 of 14 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.
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.
13. 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 11.02.24 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. The contention Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 10 of 14 of the Ld. Counsel for the revisionist that more specific purpose has been described in the complaint and accused persons have no role to play can be proved by the accused persons during the trial at an appropriate stage. In the summary trial cases, there is no power with the present court to review the order or recall the order of summoning. 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.
14. 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:-
"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."
15. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 11 of 14 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."
16. 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. It is clear from the legal notice that the cheques got presented for encashment and got returned dishonoured and revisionists has failed to make payment with the statutory jurisdiction of this court and therefore, it can not be said that no legal notice has been sent to the revisionist and summoning order has been passed overlooking the material on record. 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 the inherent power. The revisionist/accused cannot be discharged only on hearing Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 12 of 14 argument on the present revision petition 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 judgments 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 in the present court 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 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 Cr. Rev No.92/2024 Ramesh Chand & Ors. vs. Sunita Kaul Page No. 13 of 14 particularly in a case under Section 138 of the NI Act, once cognizance has already been taken and process under Section 204 issued.
17. 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 the accused. The present court has the highest regard to the authorities filed but they do not apply to the facts and circumstances of the case.
18. 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.
19. Nothing said herein shall tantamount to have effect on the merits of the case. Trial Court record be sent back alongwith the copy of this judgment.
20. After necessary formalities, revision file be consigned to Record Room.
Announced in the open court (Ambika Singh)
on 02.04.24 ASJ-02/THC,West/Delhi
02.04.24
Cr. Rev No.92/2024
Ramesh Chand & Ors. vs. Sunita Kaul Page No. 14 of 14