Delhi District Court
Rajesh Sehgal vs State on 30 July, 2022
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IN THE COURT OF SH. VINEET KUMAR:
ADDITIONAL SESSIONS JUDGE-02; E COURT:
SHAHDARA: KARKARDOOMA COURT: DELHI.
Crl. (R) No. 67/2022
Rajesh Sehgal
s/o Sh. Sat Pal Sehgal
r/o House No. 207,
Block-7, Geeta Colony,
East Delhi-110031.
............... Revisionist/Petitioner
Versus
1. State.
2. Rajesh Sharma
s/o Late K.C. Sharma
r/o House No. 1449/8, P-1,
Shiv Marg, Durga Puri,
Shahdara, Delhi-110093.
............... Respondents.
For petitioner : Advocate Mr. Bhuvneshwar Tyagi.
For Respondent no.1 : Mr. Rakesh Kumar, Ld. Addl. PP.
For Respondent no.2 : Advocate Mr. L.K. Dixit.
Date of filing : 08.06.2022
Date of arguments : 30.07.2022
Date of order : 30.07.2022
ORDER
1. This revision petition is preferred by the Petitioner (accused) under Section 397 Cr. P.C. against the Order dated 02.03.2021, passed by Sh. Mayank Mittal, Ld. MM VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.07.30 16:45:28 +0530 2 (Shahdara), KKD Courts, Delhi (hereinafter called "impugned order"), whereby Ld. MM has summoned the petitioner/accused.
2. The facts of the present matter in a nutshell are, Complainant (Respondent no.2 herein) had filed a complaint on 17.10.2020 before Ld. MM wherein he alleged that petitioner herein used to purchase the manufactured cycles and spare parts from respondent no.2 herein since 2016. In the month of January 2019, petitioner was facing financial crises and he asked for financial assistance from petitioner for an amount of Rs.2,55,000/- from respondent no.2 which was given by respondent to petitioner as a friendly loan. It has been further stated in the complaint that respondent no.2 promised to return the said loan within a period of six months and on expiry of six months, respondent no.2 demanded the loan amount and in discharge of his legal liability, petitioner issued a post-dated cheque bearing no. 163562 dated 29.05.2020 for an amount of Rs.2,55,000/- drawn on Punjab National Bank, however, upon presentation of said cheque by respondent no.2 in his bank twice, same was dishonoured with remarks 'kindly contact drawer/drawee bank and present again' vide returning memos 08.06.2020 and 14.08.2020. Thereafter respondent no.2 issued legal notice dated 10.09.2020, however, despite service of said legal notice, petitioner failed to return the loan amount to respondent no.2.
Digitally signed by VINEET VINEET KUMAR
KUMAR Date: 2022.07.30
16:45:42 +0530
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3. Ld. MM by the impugned order, summoned the accused after recording pre-summoning evidence. Aggrieved by the said order, petitioner/accused has filed the instant revision petition seeking directions to set aside the impugned order.
4. The impugned order has been primarily assailed on the ground that Ld. Trial court failed to consider that the cheque in question was neither issued nor given by the Revisionist/accused. Further, the said order is assailed on the ground that account number mentioned on the cheque in question does not belong to petitioner and the trial court failed to verify the same by not examining any bank official; that Ld. Trial court has ignored that respondent no.2 has not filed any single paper in support of his complaint; that petitioner being a literate person use to sign in English and not in Hindi, however the signatures on the cheque in question are in Hindi. It is further contended that summoning order is passed in a mechanical manner and the same is a non-speaking order, reflecting the non-application of judicious mind.
5. Whereas, Ld. Counsel for Respondent no.2 on the other hand, has mainly objected the revision petition by contending that the same is not maintainable as at the stage of summoning, the trial court only has to consider the matter by taking a prima facie view on the basis of material available on record and a thorough analysis of evidence/enquiry is not warranted at this stage.
Digitally signed by VINEET VINEET KUMAR
KUMAR Date: 2022.07.30
16:45:59 +0530
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6. I have heard the Ld. Counsel for the Petitioner as well as Ld. Counsel for Respondent no.2 and have perused the entire record meticulously. Ld. Addl P.P. for the State was not heard as State is not a necessary party in the present revision petition.
7. At the outset, it is worth mentioning that the plea of petitioner that Ld. Trial court has passed the summoning order in a mechanical manner and the same is non-speaking, reflecting the non-application of judicious mind, is without any basis and is misconceived. Reliance can be placed in this regard upon the judgment of Mehmood Ul Rehman Vs. Khazir Mohammad Tunda & Ors. 2015 (2) JCC 1337, wherein the Hon'ble Supreme Court has held as under:-
"The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.07.30 16:46:13 +0530 5 required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC, when the complaint is dismissed and that too the reasons need to be stated only briefly.
8. Pertinently, there is no hard and fast rule or a straight-
jacket formula to decipher whether the Ld. Magistrate has applied his judicial mind at the time of summoning of the accused or not, but what is important is to ensure that the accused is summoned by the learned magistrate after appreciating the material available on record. In the present case, it is evident from the summoning order itself that prior to summoning of the accused persons, the Ld. MM has taken cognizance of the offence based upon the material placed before him in the form of complaint and documentary evidence. Subsequent thereto, on the same day, arguments were also heard on the aspect of issuance of process. Thereafter, upon appreciating the material available on record in the shape of complaint, affidavit and the documentary evidence including the cheque, returning memos and legal notice etc., the Ld. MM was of the opinion that sufficient grounds exist on record to summon the accused person, and consequent thereto, he has been summoned. Thus, the order under challenge confirms to the parameters of law prescribed by settled law. Suffice, it to state that there is no infirmity qua the said aspect in the impugned order.
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2022.07.30
16:46:28 +0530
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9. The impugned order has been further challenged by contending that the Ld. Trial has not considered the contents of cheque in question as the account number mentioned therein does not belong to the revisionist and he used to sign in English and not in Hindi. It has been further contended that the Trial Court ought to have enquired before summoning the revisionist as to whether the cheque in question belonged to the revisionist or not and it has further been argued by Ld. Counsel for revisionist that why should revisionist go through the pain of facing the trial, when it can be ascertained at the pre-summoning stage itself as to whether he issued the cheque or not. It is important to mention that the contentions raised on behalf of revisionist neither has any force nor the backing of law in this regard. Pertinently, at the stage of cognizance and summoning, the Trial Court/ Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused person or not. At this stage, the learned Magistrate is neither required to consider the defence that may be put forth later on nor he is required to evaluate/analyse the merits of the material or evidence of the complainant nor is he expected to undertake the exercise to find out, at this stage, whether the material on record will lead to conviction or not.
10. It is worthwhile to mention that the step-wise procedure in a Section 138 NI Act matter to be adopted by the courts has been settled in Rajesh Aggarwal Vs. State & VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.07.30 16:46:42 +0530 7 Anr. 2010 SCC Online Del. 2501 which is reproduced as under:-
Step I : On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint & documents and if commission of offence is made out, take cognizance & direct issuance of summons of accused, against whom case is made out. Step II : If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 Cr. P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence.
Step III : If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant.
Step IV : To hear arguments of both sides. Step V : To pass order/judgment.Digitally signed by
VINEET VINEET KUMAR
KUMAR Date: 2022.07.30
16:46:56 +0530
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11. As per the scheme of things in light of above law, there was no cause or occasion for the Ld. Trial Court to have gone into the inquiry of factual contentions raised by the revisionist herein as the same are a matter of trial. It may be stated that the same can only be considered once revisionist is summoned and thereafter puts forth his defence on record and not before that. The Hon'ble Supreme Court and Hon'ble High Courts have time and again made it clear that the offence under NI Act being an offence, genesis of which is in the form of documentary evidence, no further inquiry except scrutiny of documents produced before the court by the testimony of complainant witnesses is required for the purpose of summoning the accused. Suffice it to state that at best, the Ld. Magistrate appreciates the material available on record in the form of complaint, affidavit and the documentary evidence including the cheque, returning memo and legal notice and in addition to it, hears the arguments to form an opinion that sufficient grounds exists on record to summon the accused, and thereafter, if prima facie satisfied, then consequently accused person is summoned.
12. Looking into the impugned order, it may clearly be observed that trial court upon appreciating the complaint, affidavit and the documentary evidence including the cheque and returning memos as well as upon hearing arguments on behalf of complainant, has correctly reached the conclusion that prima facie sufficient material has come on record to proceed against accused for offence under Section 138 of VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2022.07.30 16:47:10 +0530 9 N.I. Act. Ld. Trial Court at that stage couldn't have gone into the enquiry as to whether the cheque in question was issued by the revisionist or not. Thus, having considered this, it cannot be said that impugned order dated 02.03.2021 suffers from any illegality or impropriety.
13. Therefore, present revision petition has no merit and resultantly the same stands dismissed.
Trial Court record be sent back along with a copy of this order. Revision file be consigned to record room.
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2022.07.30
16:47:23 +0530
Announced in the open (Vineet Kumar)
Court on 30.07.2022. ASJ-02/E-COURT Shahdara/KKD/Delhi.