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Jagmal Singh vs Intec Capital Limited on 23 February, 2023

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~45
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CRL.M.C. 1284/2023
                                 JAGMAL SINGH                                             ..... Petitioner
                                                    Through:      Mr. Vishal Gera, Mr. Ravish Verma
                                                                  and Mr. Arbind Yadav, Advocates.
                                                    versus
                                 INTEC CAPITAL LIMITED                                   ..... Respondent
                                                    Through:      Counsel (appearance not given).

                                 CORAM:
                                 HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                    ORDER

% 23.02.2023 CRL.M.A. No. 4891/2023 (Exemption) Exemption granted, subject to just exceptions. Let requisite compliances be made within 01 week. The application stands disposed of.

CRL.M.C. 1284/2023 & CRL.M.A. 4890/2023 By way of the present petition under section 482 of the Code of Criminal Procedure 1973 ('Cr.P.C.', for short), the petitioner impugns summoning order dated 06.01.2016, whereby the learned Metropolitan Magistrate has been pleased to summon the petitioner in a case under section 138 of the Negotiable Instruments Act, 1881 ('NI Act', for short) bearing Complaint Case No. 630163 of 2016 titled Intec Capital Ltd. vs. Jagmal Singh.

2. While the petitioner disputes that the subject cheque was ever issued by him, that apart, Mr. Vishal Gera, learned counsel appearing for the petitioner points-out that a 'legally enforceable debt' is sought to be imputed against the petitioner, based upon a certain loan transaction arising from a loan agreement, a loan recall notice, a statement of account and a deed of guarantee, with the specific allegation that the deed of guarantee was signed by the petitioner.

3. Counsel submits however, that a bare perusal of the signatures appearing on the subject cheque and the deed of guarantee, makes it clear that they are not the signatures of one and the same person. Moreover, it is pointed-out that the loan agreement, the loan recall notice and the statement of account have admittedly been brought on record only 07 years later, upon an application made by the respondent, which was allowed by the learned Magistrate vide order dated 09.01.2023.

4. Accordingly, it is the petitioner's argument case, that as of the date of issuance of summons on 06.01.2016, there were no documents on record to show the existence of a legally enforceable debt; which is an essential ingredient of the offence under section 138 NI Act.

5. Attention is also drawn to the following observations of the Supreme Court in Pepsi Foods Ltd. vs. Special Judicial Magistrate1:

28. Summoning of an accused in a criminal case is a serious matter.

Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the 1 (1998) 5 SCC 749 Signature Not Verified Digitally Signed By:NEERAJ Signing Date:28.02.2023 CRL.M.C. 1284/2023 Page 2 of 4 12:56:26 Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

(emphasis supplied) whereby, application of mind by the learned Magistrate is a necessary requirement prior to issuance of summons.

6. It is submitted that the summoning order does not contain any discussion nor does it show any application of mind, based on which summons could have been issued to the petitioner.

7. Upon a prima-facie conspectus of the averments contained in the petition and the submissions made, issue notice.

8. Learned counsel is present on behalf of the respondent on advance copy; accepts notice; and seeks time to file reply.

9. Let reply be filed within 06 weeks; rejoinder thereto, if any, be filed within 04 weeks thereafter; with copies to the opposing counsel.

10. In view of the above discussion, and since the petitioner has been summonsed by an ex-facie unreasoned summoning order, without requisite inquiry before issuance of summons, further proceedings in criminal complaint bearing Complaint Case No. 630163 of 2016 titled Signature Not Verified Digitally Signed By:NEERAJ Signing Date:28.02.2023 CRL.M.C. 1284/2023 Page 3 of 4 12:56:26 Intec Capital Ltd. vs. Jagmal Singh, shall remain stayed, till the next date of hearing.

11. Re-notify on 24th May 2023.

ANUP JAIRAM BHAMBHANI, J FEBRUARY 23, 2023/uj Signature Not Verified Digitally Signed By:NEERAJ Signing Date:28.02.2023 CRL.M.C. 1284/2023 Page 4 of 4 12:56:26