Delhi District Court
Sh. Hemant Dandona vs M/S B S Global on 1 December, 2014
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0175512014
Criminal Revision Number : 204/2/14 dated 13.10.2014
CC No. : 276/1/13, PS Parliament Street
U/s : 138 NI Act
Sh. Hemant Dandona
S/o Sh. Ashok Dandona
R/o BE84, Hari Nagar,
New Delhi110064 ....Revisionist/Petitioner
versus
M/s B S Global
Through its partner
Sh. Shishir Srivastava
S/o Dr. G J Srivastava
C/o Khasra No. 79,
Old Lal Dora 19081909,
Village Baprola, Najafgarh,
New Delhi110043. ..... Respondent
CR No. 204/2/14 Page No.1/7
Hemant Dandona Vs M/s B S Global
Revision received by Court: 13.10.2014
Arguments concluded : 01.12.2014
Date of order : 01.12.2014
ORDER:
1 By way of present revision petition, the petitioner has challenged the order dated 05.08.2014 passed by the court of Sh. S S Lamba, Ld. MM, Patiala House Courts, New Delhi, whereby the Ld. MM was pleased to dismiss the application of the petitioner seeking his discharge in the case filed against him for the offence u/s 138 N I Act, by the respondent no. 1 herein. 2 Feeling aggrieved from the said order, the petitioner has filed the present revision petition on the following grounds as under:
That the impugned order has been passed by the Ld. MM in a mechanical and arbitrary manner and the same was passed purely on presumptions, surmises and conjunctures and even relevant facts on the subject matter were not considered at all in the light of the ratios of the laws pronounced by the Hon'ble Supreme Court as well as by the Hon'ble High Court of Delhi in number of its judgments and the Ld. MM had also failed to appreciate the presumptive value of documents such as registration certificate of sale tax and excise department, etc., which had clearly reflected that the petitioner was not CR No. 204/2/14 Page No.2/7 Hemant Dandona Vs M/s B S Global a partnership firm, rather a proprietorship firm but the Ld. MM had failed to consider this aspect of the matter as well.
3 It was also contented that the Ld. MM had also failed to appreciate the fact that there was no legally enforceable debt or liability on the part of petitioner herein in discharge of which, the cheque in question could have been issued by him and the order passed by the Ld. MM is a non speaking order by way of which, the Ld. MM had directed framing of notice u/s 251 CrPC against the present petitioner and he was made to face the agony of the protracted trial. Hence revision petition deserved to be allowed and the impugned order needed to be set aside by this court in exercise of its revisional jurisdiction. 4 In support of his argument and contentions, the Ld. Counsel appearing for petitioner has also relied upon the following citations as under:
1. 139 (2007) DLT361 J.N. Bhatia Vs State & Ors.
2. 184 (2011) DLT744 Kamal Kumar Vs K G Dutta & Anr.
3. 2013 (3) DCR407 M M Lal Vs State NCT of Delhi & Anr.
4. 2008 (1) DCR 481 Sharmendra Maheshwari Vs Pramod Kedia
5. 100 (2002) DLT673 Pratap Singh Yadav Vs Atal Behari Pandey
6. 172 (2010) DLT340 Arsh Electronics P. Ltd. Vs Telematica Star Ltd. & Anr.
7. 205(2013) DLT109 Mahendra M. Malviya vs Bhagwan Singh T. Rajput CR No. 204/2/14 Page No.3/7 Hemant Dandona Vs M/s B S Global
8. 167(2010) DLT428 M L Gupta Vs DCM Financial Services Ltd.
9. VIII (2012) SLT537 Satish Mehra Vs State of NCT of Delhi & Anr. 10.175 (2010) DLT424 Rebby Verghese Vs Haier Appliances P. Ltd. & Anr
11. 121 (2005) DLT431 Rachna Kapoor Vs State (NCT of Delhi) & Ors. 12.212 (2014) DLT 489 Arvind Kejriwal & Ors. Vs Amit Sibal & Anr.
5 Emphasis has also been supplied on the ratio of case titled as "Bhushan Kumar Vs State (NCT of Delhi)" of Hon'ble Supreme Court as well as in case titled as "Arvind Kejriwal & Ors. Vs Amit Sibal & Anr." wherein Hon'ble Mr. Justice J R Midha, J. of Hon'ble High Court of Delhi was pleased to quote the relevant para of Bhushan Kumar's judgment which is reproduced here as under
for a ready reference:
In Bhushan Kumar Vs State (NCT of Delhi), (2012) 5SCC 424, the Supreme Court observed that it is the bounden duty of the Trial Court in Section 251 CrPC, to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him. The relevant findings of the Supreme Court are reproduced hereunder:
"20. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of CR No. 204/2/14 Page No.4/7 Hemant Dandona Vs M/s B S Global any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code".
6 Respondent has also filed reply to this revision petition wherein he had denied the entire grounds of present revision petition in toto for which the petitioner has also filed his rejoinder wherein he had reiterated the contentions of the petition as correct.
7 After hearing both the Ld. Counsels and going through the record of Ld. Trial court, I find that the petitioner had sought his discharge before the Ld. Trial court on the ground that his firm was not a partnership concern but a proprietorship concern and in support of his contentions, he had also placed on record certificates so obtained from the concerned authorities. 8 It was also stated that petitioner was not the proprietor of the said firm rather it was accused no. 2 who was the father of the petitioner herein who was the proprietor of the said firm and present petitioner was merely working under him as an employee. Even the signatures appearing on the cheque in question were also stated to be those not of the petitioner herein and on these grounds the discharge had been sought before Ld. Trial court. 9 I have no hesitation in holding that all these pleas taken by the petitioner before Ld. Trial court as well as before this court pertain to the factual CR No. 204/2/14 Page No.5/7 Hemant Dandona Vs M/s B S Global assertions which cannot be adjudicated upon unless and until the evidence is adduced on record in support of their rival contentions by the respective parties.
10 Furthermore, so far as the claim of petitioner being a proprietorship concern of his father is concerned, cheque which is the subject matter of the complaint before the Ld. Trial court does not speak about the status of its drawer showing the name of M/s LPC Polymers alone as the account holder without specifying as to whether it was a partnership concern or a proprietorship concern. Thus, the status of the petitioner has to be examined and proved after adducing the evidence as it has been cited to be a partnership concern by the respondent in its complaint filed before the Ld. Trial court. Hence, this fact can only be decided by way of evidence and not otherwise. 11 So far as certificates obtained by the petitioner from the concerned authorities and placed on record before the Ld. Trial court are concerned, same did not stand proved at this stage because the same are required to be proved by adducing evidence in accordance with the provision of Indian Evidence Act and hence no presumptive value can be assigned to them at such a preliminary stage.
12 Since all these contentions are related to the merits of the case, which cannot be proved or disproved without adducing evidence, hence, I do not find CR No. 204/2/14 Page No.6/7 Hemant Dandona Vs M/s B S Global any illegality and/or infirmity in the impugned order warranting any interference of this court in the exercise of its revisional jurisdiction. Hence, the present revision petition is dismissed being devoid of any merits. 13 TCR be sent back to the concerned court alongwith the copy of this order with directions to parties appear on the date already fixed. 14 The file of this revision petition be consigned to record room after completion of all other necessary formalities in this regard. Announced in the open Court on 01.12.2014 (LOKESH KUMAR SHARMA) ADDITIONAL SESSIONS JUDGE04 NEW DELHI DISTRICT/ PATIALA HOUSE COURTS/NEW DELHI CR No. 204/2/14 Page No.7/7 Hemant Dandona Vs M/s B S Global