Delhi District Court
Tilak Raj Sahni vs Deepak Sethi on 22 November, 2023
IN THE COURT OF MS AMBIKA SINGH, ASJ-02/ WEST
DISTRICT, TIS HAZARI COURTS, NEW DELHI
Criminal Revision No. 180/2023
Tilak Raj Sahani
S/o Late Sh. Amar Nath Sahni
R/o 1053, Sector-6,
Bahadurgarh, Haryana
.....Revisionist
Versus
Sh. Deepak Sethi
S/o Late Sh. Inder Kumar Sethi,
R/o E-87B, Mansarover Garden,
New Delhi.
.....Respondent
Date of institution of the cases : 27.03.2023
Date when the cases reserved for order : 22.11.2023
Date of announcement of order : 22.11.2023
JUDGMENT
22.11.2023
1. This criminal revision petition assails the order dated 09.02.2023 order on the application of discharge and notice framed against the accused (hereinafter to be referred as the impugned order) passed by the Ld. MM, N.I. Act in case CC No. 10156/2016. A prayer has been made to set aside the said CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 1 of 13 impugned order.
2. The Ld. Trial court vide order dated 09.02.2023 has passed passed the order on the application of discharge and framed the notice against the revisionist/accused. Briefly stated, it is the case that cheque in question was allegedly issued by the accused no. 1 Jaspal Singh from his personal saving account, in accordance with the above mentioned MOU as security which was returnable on completion of the entire work. Further, the complainant/respondent misused the cheque and to avoid his liability towards the demand notice filed the said complaint against the accused no. 1. The revisionist/accused has nothing to do with the issuance of cheque as to the specific knowledge of the complainant, the revisionist/accused was only the financer, who was financially helping the accused No.1 Jaspal Singh at the initiation of the construction, and not in any manner responsible or liable for any delay /deficient construction etc. for which the said cheque was issued as security. Further, as per the case of the complainant, the cheque in question, which was issued apparently issued by accused No.1 only, was dishonored vide return memo dated 23.10.2013 from the bankers of the accused no. 1 and revisionist/accused has nothing to do with the alleged offence under section 138 of NI Act, as none of the statutory ingredients of the NI Act is fulfilled against him. Further, revisionist/accused is neither the authorized signatory nor in any manner having anything to do with the bank account from which the cheque was issued and further there is no liability which can CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 2 of 13 be fastened against the revisionist/accused for the commission of offence under section 138 of NI Act. Lastly, Ld. Trial Court was pleased to dismiss the said application vide Order dated 9.2.2023 and framed notice under sec. 251 Cr. P.C. against the revisionist/accused also, without even giving sufficient time to the revisionist/accused to assail the said order and the matter was fixed on 09.03.2023.
3. Revisionist has assailed the impugned order dated 18.05.2022 and 28.11.2022 on the ground that firstly, Ld Trial Court while passing the impugned order is illegal as the ingredients of section 138 of Negotiable Instruments Act are not fulfilled against the revisionist/accused so no notice should have been framed against him. Secondly, Ld Trial Court ought not to have acted mechanically while putting any individual to criminal trial. Hence, the impugned order is bad and deserves to be quashed by this Court. Thirdly, Ld. Trial Court failed to appreciate that Section 251 Cr.P.C. and Section 138 N.I. Act coupled together, no question can be put the revisionist/accused rather the issuance of summon itself was bad. Fourthly, Ld. Trial Court further failed to appreciate that the revisionist/accused has no liability towards the complainant the respondent herein nor even made responsible or liable for any construction or left out work and revisionist/accused has not issued the cheque in question which was admittedly issued by Shri Jaspal Singh (accused No.1) after executing documents. Fifthly, the impugned CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 3 of 13 order was passed without proper appreciation of the material available on record, hence, the impugned order is of based on conjectures and surmises and is liable to be set aside by this Court. Sixthly, the impugned order as passed by the Learned Trial Court is cryptic and mechanical and it does not disclose at all as to how, a prima facie case is made out against the revisionist/accused for framing charge against him. Ld. Trial Court has passed the impugned order in haste and mechanical manner.
4. Notice of the Revision petition was issued to the respondent on which the respondent entered her appearance. TCR was also summoned.
5. Ld. Counsel for respondent/complainant has argued that the present revision petition is not maintainable as the revisionists failed to point out any infirmity in the impugned order dated 09.02.2023. Revisionist/accused Tilak Raj and Jaspal Singh are the builder who worked in joint venture and used to work jointly in the business of development/reconstruction of the residential property by entering jointly into a collaboration agreement dated 31.07.2011. The allegation are full of falsehood and it is not permissible under the law to look into the evidence of the revisionist. The revisionist is at liberty to prove the same by leading evidence in defence at the appropriate stage.
6. I have heard the arguments and perused the record carefully.
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7. Before taking up the matter in hand, it would be appropriate to refer to the case law on the present issue. 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 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 CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 5 of 13 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".
8. 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 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 CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 6 of 13 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 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 CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 7 of 13 258 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 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 CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 8 of 13 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.
9. 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 order dated 09.02.2023 and framed the notice 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 person. In the summary trial cases, there is no power with the court to review the order or recall the order. 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.
10. 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:-
CR No. 180/2023Tilak Raj Sahani Vs. Deepak Sethi Page No 9 of 13 "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."
11. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) 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."
12. 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. As I have discussed earlier, it was held in Adalat Prasad Case's that order of taking cognizance, the discharge of accused can only be subject matter of a proceedings under section 482 of the code as CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 10 of 13 the district courts do not have the inherent power. The revisionist/accused cannot be discharged only on hearing argument on the stage of serving upon notice under Section 251 of the Cr.P.C and no proceeding against the accused 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 judgements of the court in Adalat Prasad (supra) and Subramanium (supra) had interpreted law correctly and reiterate that there is no inherent power of the trial courts 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 CR No. 180/2023 Tilak Raj Sahani Vs. Deepak Sethi Page No 11 of 13 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 particularly in a case under Section 138 of the NI Act, once cognizance has already been taken and process under Section 204 issued.
13. 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 framing of notice 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.
14. 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.
15. Revision is accordingly disposed of as dismissed.
16. 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.
CR No. 180/2023Tilak Raj Sahani Vs. Deepak Sethi Page No 12 of 13
17. After necessary formalities, revision file be consigned to Record Room.
Announced in the open court (Ambika Singh)
on 22nd November, 2023 ASJ-02/THC, West/ND
22.11.2023
CR No. 180/2023
Tilak Raj Sahani Vs. Deepak Sethi Page No 13 of 13