Delhi District Court
Lokesh Kumar @ Monty vs Sh.Aditya Kaushik Advocate on 13 January, 2012
-: 1 :-
IN THE COURT OF SH. S.K. SARVARIA : DISTRICT JUDGE & ADDL.
SESSIONS JUDGE, INCHARGE (NORTH WEST), ROHINI COURTS :
DELHI.
CR No. 91/11
Lokesh Kumar @ Monty
S/o Sh.Hari Singh,
Flat No. D-17/116, Sector-3,
Rohini, Delhi - 110085.
.....Petitioner
VERSUS
Sh.Aditya Kaushik Advocate,
S/o Sh.Surendra Kaushik,
R/o 87-88, Pocket-I, Sec-20,
Rohini, Delhi-85.
.....Respondent
Date of Institution: 04.11.2011
Date of Arguments: 19.12.2011
Date of Judgment: 13.01.2012
O R D E R:-
This revision petition is filed by the petitioner challenging the order dtd. 16/08/11 passed by the Ld. Addl. Rent Controller cum Metropolitan Magistrate (in short trial court) by which the notice U/s.251 Cr. P. C was given to the petitioner in the complaint case filed by the respondent against the petitioner/accused alleging that the cheques in question issued by the petitioner/accused on being presented to the bank got dishonored. The said complaint was filed U/s.138 N. I. Act.
2. Both the parties have filed written arguments. The contentions on behalf of the petitioner/accused are that the Ld. Trial Court did not properly Lokesh Kumar @ Monty Vs. Aditya Kaushik -: 2 :- appreciate the facts and law and has mechanically framed the Notice U/s 251 Cr.P.C. while infact the cheque in questions were given to M/s. J. M. D. Finance as security but not returned to the petitioner/accused by the said company despite that repayment of the loan. The respondent/complainant is an advocate and has misused the said cheque issued by the petitioner as security. Therefore, Notice U/s 251 Cr.P.C. framed vide order dtd.16/08/11 by the Ld. trial court should be set aside. The petitioner/accused has relied upon the judgments titled as Ravi Kumar Vs. State of Delhi & Anr., 2011 (3) LRC 210 (Del) High Court of Delhi, Kamala S. Vs. Vidhyadharan M. J. & Ors, (2007) ACR 347 Supreme Court of India, M/s. Suryalakshmi Cotton Mills Ltd. Vs. M/s. Rajvir Industries Ltd. & Ors. 2008 (1) DCR 324, Supreme Court of India, S. Gopal Vs. D. Balachandran 2008 (1) DCR 334, Madras High Court.
3. The contentions on behalf of the respondent/complainant is that the Ld. trial court has passed the correct order by giving Notice under Section 251 Cr.P.C. on account of the cheque of the petitioner/accused having been dishonored so the revision petition is liable to be dismissed.
4. I have gone through the written arguments, trial court record, revision petition, relevant provisions of law and citations placed on record. The very first question which emerges from the present revision petition is its maintainability against the order/Notice U/s 251 Cr.P.C. It is pertinent to note that the revision petition lies against final and not against interlocutory order. Another important fact is unlike in Warrants Cases where as per provisions of law the charge can be framed and the accused can be discharged also for the want of prima facie case, for the alleged offence, at the stage of framing of the charge but there is no provision for under the Summon Trail procedure for discharging of the accused in private criminal cases. Section 258 Cr.P.C. which deals with stopping of proceedings is attracted to police cases and not to private complaint cases. The present case is Lokesh Kumar @ Monty Vs. Aditya Kaushik -: 3 :- also not a police case attracting by the Section 258 Cr.P.C. where the Ld. trial court could have stopped proceedings for want of prima facie case. In this back drop, I proceed further to deal with the following case law which would further stretch the above legal interpretation in the same discretion.
5. In Subramanium Sethuraman v State of Maharashtra AIR 2004 SC 4711, it was observed as follows:
"16. 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."
6. Relying upon Subramanium Sethuraman's case (supra) our Hon'ble High Court in Asia Metal Corporation (HUF) Versus State and another 130 ( 2006) DLT 545 has observed:
"The issuance of summons for attendance marks the end of the pre- summoning stage and the case then has to be dealt with under Chapter XX which deals with trial of summons cases by magistrate. At this stage, the Magistrate is not required to further apply his mind as to whether the case has to be proceeded with or not against the accused/summoned persons. All that is required under Section 251 of the Code is that the substance of the accusation is to be stated and the accused is to be asked whether he pleads guilty or has any defence to make and it is also not necessary to frame a formal charge. None of the provisions of Chapter XX speak of any possibility of discharge except under Section 258 which does not apply to the present case. The Supreme Court's decision in the case of Subramanium Sethuraman (supra) is quite clear on this aspect and has categorically held that the case involving a summons case is covered by Chapter XX of the Code which does not contemplate a Lokesh Kumar @ Monty Vs. Aditya Kaushik -: 4 :- stage of discharge like Section 239 which provides for a discharge in a warrant case. What has happened in the present case is that after summons were issued, at the stage of proceedings under Section 251 of the Code, the learned Metropolitan Magistrate has discharged all the accused except Yogesh Gupta. There is no provision of discharge at the stage of Section 251 of the Code and, therefore, this is clearly contrary to the provisions of the Code as also to the law as declared by the Supreme Court in the case of Subramanium Sethuraman (supra). This is an error which needs to be corrected and, therefore, these revision petitions would be maintainable."
7. In view of the above, the Ld. trial court cannot discharge the accused at that stage after giving Notice U/s 251 Cr.P.C. Rather, it is required to expedite proceedings for its quick disposal.
8. Ravi Kumar's Case (Supra), Kamlesh's Case (Supra), Surya Laxmi Cotton Mills's (Supra) and M/s. Harman Electronics (P) Ltd's (Supra) do not deal with maintainability of the revision petition post giving Notice U/s 251 Cr.P.C. Therefore, these authorities do not help the petitioner on the above discussed point. Further, even in warrants cases, the ld. trial court at the stage of framing of charge is unable to go into plea of defence of the accused, which did not emerge from the prosecution case at the stage of framing of the charge nor the accused is allowed to file documents in support of plea of defence at the stage of framing of charge. Therefore, the defence of petitioner that cheques in question were issued as security against loan to M/s J.M.D. Finance and were misused by respondent/complainant cannot be looked into on the question of giving Notice under Section 251 Cr.P.C., even if it is assumed that there is parity in the stage of Notice under Section 251 Cr.P.C. in summon trial case with the framing of charge in warrant trial case.
9. In view of the above discussion, the revision petition is dismissed as the impugned order dated 16/08/11 does not suffer from any illegality, material Lokesh Kumar @ Monty Vs. Aditya Kaushik -: 5 :- irregularity or impropriety. The order be sent to the server (www delhidistrictcourts.nic.in) Parties are directed to appear before the Ld. Trial court on 20/01/12. The trial court record be returned along with the copy of this order. The file of the revision petition be consigned to the record room.
Dictated & Announced on 13th January, 2012.
(S.K. SARVARIA) District Judge & Addl. Sessions Judge Incharge North-West District/Addl. Rent Controller Tribunal, Rohini Courts Lokesh Kumar @ Monty Vs. Aditya Kaushik