Delhi District Court
Raj Kumar Gupta vs Lalit Goelpropritor Of Ms Laxmi Trading ... on 16 January, 2024
CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
IN THE COURT OF SH. GAUTAM MANAN, ASJ-05
EAST, KARKARDOOMA COUTRS, DELHI
Criminal Revision No.249/2023
CNR No. DLET01- 011436-2023
In the matter of:
Raj Kumar Gupta
S/O Late Hukam Chand Gupta
R/O E-972, Saraswati Vihar,
Pitampura, Delhi-110034 ... Revisionist
Versus
1. Lalit Goel
Proprietor Of M/s Laxmi Trading Company
349, Naya Bans Delhi-110006
2. Sandeep Nagariya
S/O Late Hukam Chand Gupta
At: Plot No. 33, Budh Vihar,
Phase-I, Delhi-110086 ... Respondents
Date of institution of revision : 12.09.2023
Date on which judgment reserved : 10.01.2024
Date on which judgment pronounced : 16.01.2024
ORDER
1. Revisionist has filed the present revision petition u/s 397 against order dated 30.10.2018 in case titled as "Lalit Goel vs. Sandeep Nagariya & Anr." bearing Ct. No. 1074/18, passed by Ld MM (NI Act) East, wherein the Ld. Trial Court has summoned the revisionist for the offence punishable under Section 138 NI Act.
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Brief Facts
2. Brief facts of the case are that respondent no.1 Lalit Goel institied complaint case under Section 138 NI Act on allegations that revisionist and respondent no.2 being partners of M/s Aarav Enterprises purchased goods from him that in discharge of their partial liability to pay the outstanding amounts three post dated cheques to the tune of Rs 7 lac were issued. Cheques got dishonored with remarks "insufficient funds" and despite service of demand notice, revisionist and respondent no.2 did not pay the cheque amount.
Impugned Order
3. Ld Trial Court vide impugned order dated 30.10.2018 summoned revisionist. Relevant part of order reads as under:
.... In view of sufficient material on record and arguments prima-facie case is made out for summoning the accused for the offence u/s 138 of NI Act.
Hence, I take cognizance for the offence u/s 138 of NI Act, let summons be issued against the accused on filing of PF/RC alongwith copy of complaint and relevant documents annexed with it returnable on 31.05.2019. In case the address of accused belongs to a place outside Delhi, let summons be issued through SHO PS concerned.Criminal Revision Page 2 of 12
CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
Grounds of Revision
4. Impugned order of summoning is challenged by the revisionist on the ground that Ld. Trial Court while passing the Impugned Order dated 30.10.2018 ignored the fact that as per the case of respondent no. 1, revisionist and respondent No. 2 are the partners of the partnership firm i.e. "M/s Aarav Enterprises" and the drawer of the cheques in dispute is the said firm. However, respondent no. 1 did not serve the legal notice nor arrayed the said firm as an accused in the criminal complaint. Therefore, the complaint filed by respondent no.1 is liable to be dismissed on the ground of non- joinder of necessary party.
5. Revisionist has submitted that it is an admitted position that the cheques in dispute were issued by a firm i.e. "Aarav Enterprises" therefore, principal offender in the said case is the said firm and in the absence of the firm being arraigned as accused in the complaint, prosecution of its partners as so alleged by the respondent no. 1 cannot be maintained.
6. It is submitted that first ingredient for constituting an offence under Section 138 of the Negotiable Criminal Revision Page 3 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
Instruments Act, 1881 is the fact that a person who has drawn the cheque and the identity of the drawer of cheque is thus necessarily required to be known to the complainant (payee). In the present case, as per the case of the respondent No. 1, the drawer of the cheque is "M/s Aarav Enterprises" which is a partnership firm in which revisionist and respondent No. 2 are the partners. However, the respondent No. 1 has failed to make the said firm (the drawer of the cheques in dispute) as a party to the prosecution under Section 138 of the Negotiable Instruments Act, 1881.
7. Revisionist has further submitted that respondent no. 1 has averred that the petitioner is a partner of the drawer firm i.e. "M/s Aarav Enterprises". However, respondent no. 1 has not made a single allegation against revisionist and has failed to establish that revisionist was involved in managing the day to day affairs of the said firm. It is stated that in absence of any allegation against the revisionist in the complaint, summoning order against him is bad under law and is liable to be set aside.
Respondent's Submissions
8. On the other hand, it is submitted on behalf of respondent no.1 that Ld. Trial Court has rightly passed the impugned order as the notice to the partners is a deemed notice to the partnership firm as well. It is Criminal Revision Page 4 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
stated that as per the provisions of Partnership Act a partner is an agent of the firm and hence orders passed by Ld. Trial Court is perfectly justified.
9. I have heard rival submissions and perused the record.
Analysis
10. Delay in filing petition: It is submitted on behalf of revisionist that there is delay of 1640 days in filing the revision petition. Revisionist has explained that upon receipt of the summoning Order dated 31.10.2018, he duly appeared before the Learned Trial Court. Thereafter numerous attempts were made to serve the respondent No. 2, however, the Respondent No. 2 was un-served and in March 2020, a nation vide lock down was imposed and all the commercial and administrative activities across the country were at halt. Even after unlocking of the lock-down, respondent no. 2, remained un-served.
11. Revisionist stated that he filed an application seeking discharge before the Learned Trial Court but same was dismissed vide order dated 15.04.2023. Then revisionist approached the Hon'ble High Court of Delhi seeking quashing of the C.C. No. 1084/2018 along with summoning order dated Criminal Revision Page 5 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
30.10.2018. Hon'ble High Court upon hearing the matter was pleased to grant liberty to approach this Hon'ble Court. It is prayed that in these facts delay in filing of the petition be condoned.
12. Respondent no.1 has opposed the application on the ground that revisionist has failed to explain reasons of the delay and hence, application seeking condonation of delay is liable to be dismissed.
13. In Sheo Raj Singh v. Union of India, (2023) 10 SCC 531 , Hon'ble Apex Court has held as under:
34. The order under challenge in this appeal is dated 21-12-2011 [Union of India v. Sheo Raj, 2011 SCC OnLine Del 5511] . It was rendered at a point of time when the decisions in Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107] , Ramegowda [G. Ramegowda v. LAO, (1988) 2 SCC 142] , Chandra Mani [State of Haryana v.
Chandra Mani, (1996) 3 SCC 132] , K.V. Ayisumma [Tehsildar (LA) v. K.V. Ayisumma, (1996) 10 SCC 634] and Lipok AO [State of Nagaland v. Lipok Ao, (2005) 3 SCC 752 : 2005 SCC (Cri) 906] were holding the field. It is not that the said decisions do not hold the field now, having been overruled by any subsequent decision. Although there have been some decisions in the recent past [State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654 : (2021) 1 SCC (Civ) 101 : (2021) 1 SCC (Cri) 117 : (2021) 1 SCC (L&S) 84] is one such decision apart from University of Delhi [University of Delhi v. Union of India, (2020) 13 SCC 745] ] which have not accepted governmental lethargy, tardiness and indolence Criminal Revision Page 6 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
in presenting appeals within time as sufficient cause for condonation of delay, yet, the exercise of discretion by the High Court has to be tested on the anvil of the liberal and justice oriented approach expounded in the aforesaid decisions which have been referred to above.
35. We find that the High Court in the present case assigned the following reasons in support of its order:
35.1. The law of limitation was founded on public policy, and that some lapse on the part of a litigant, by itself, would not be sufficient to deny condonation of delay as the same could cause miscarriage of justice.
35.2. The expression "sufficient cause" is elastic enough for courts to do substantial justice.
Further, when substantial justice and technical considerations are pitted against one another, the former would prevail.
35.3. It is upon the courts to consider the sufficiency of cause shown for the delay, and the length of delay is not always decisive while exercising discretion in such matters if the delay is properly explained. Further, the merits of a claim were also to be considered when deciding such applications for condonation of delay. 35.4. Further, a distinction should be drawn between inordinate unexplained delay and explained delay, where in the present case, the first respondent had sufficiently explained the delay on account of negligence on part of the government functionaries and the government counsel on record before the Reference Court. 35.5. The officer responsible for the negligence would be liable to suffer and not public interest through the State. The High Court felt inclined to take a pragmatic view since the negligence therein did not border on callousness.
14. In the present case, revisionist duly filed an application before Ld Trial Court and against the orders Criminal Revision Page 7 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
passed by Ld Trial Court, revisionist approached Hon'ble High Court. Hon'ble High Court gave revisionist an opportunity to file present petition.
15. In Sheo Raj Singh v. Union of India (supra) , Hon'ble Apex Court has held that expression "sufficient cause" is elastic enough for courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one another, the former would prevail. Thus, in light of the judgment and keeping in view of conduct of revisionist in preferring petition seeking his discharge as well as in interest of justice, delay in filing of the revision petition stands condoned.
16. Case on Merits: In his complaint, respondent mentions that he is known to accused no.1 Raj Kumar but in memo of parties, respondent has mentioned the name of Mr Sandeep Nagariya as accused no.1. Para no.3 of the complaint reads as under:
3. That the above mentioned accused person representing themselves to be the partner of one firm namely M/s. Aarav Enterprises, approached the complainant and showed their willingness to have business dealings with the complainant as the accused no. 1 assured the undersigned that the aforesaid firm also belongs to the accused no.1 which is run by the accused no.2 i.e. the brother of accused no.1 and subsequently started purchasing Refined Oil/Vanaspati Ghee from Criminal Revision Page 8 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
the complainant on almost regular basis since around last 2 years.
17. Above para of complaint indicates that as per respondent, M/s Aarav Enterprises belongs to Ms Sandeep Nagariya (respondent no.2) and not revisionist.
18. Even otherwise there is no material on record that M/s Aarav Enterprises is a partnership concern in which revisionist is a partner. Revisionist is not signatory to the cheque. Moreover, if at all, for the sake of arguments it is presumed that revisionist is partner of M/s Aarav Enterprises, in that also respondent has not arrayed M/s Aarav Enterprises as an accused in the present case.
19. In "Dilip Hariramani Versus Bank of Baroda", 2022 SCC OnLine SC 579 Hon'ble Apex held as under:
16. The provisions of Section 141 impose vicarious liability by deeming fiction which presupposes and requires the commission of the offence by the company or firm. Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable.
Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished. However, Criminal Revision Page 9 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
such vicarious liability arises only when the company or firm commits the offence as the primary offender. This view has been subsequently followed in Sharad Kumar Sanghi v. Sangita Rane, Himanshu v. B. Shivamurthy, and Hindustan Unilever Limited v. State of Madhya Pradesh. The exception carved out in Aneeta Hada (supra), which applies when there is a legal bar for prosecuting a company or a firm, is not felicitous for the present case. No such plea or assertion is made by the respondent.
20. Above decision makes it clear that in absence of primary offender (in this case, M/s Aarav Enterprises a partnership firm) is not prosecuted criminal liability cannot be fastened upon the revisionist.
21. Summoning of a person is a serious exercise of judicial discretion. The Court cannot summon any person mechanically without application of judicial mind on mere asking.
22. In Pepsi Foods Ltd. And Another vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749 , Hon'ble Supreme Court of India held, as under:
"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 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 Criminal Revision Page 10 of 12 CR No. 249 /2023 "Raj Kumar Gupta Vs. Lalit Goel & Anr"
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. 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."
23. In Deepak Gaba v. State of U.P., (2023) 3 SCC 423 Hon'ble Apex Court has held as under:
"31. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times."
24. Facts indicate that primary offender has not been arrayed as an accused. There is no material on record that revisionist is partner of M/s Aarav Enterprises or has signatory to the cheque in question.
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25. Thus, in view of authoritative judgments of Hon'ble Apex Court, Ld Trial Court fell in error both in facts and law to summon revisionist for the offence punishable under Section 138 NI Act.
26. Accordingly, order dated 30.10.2018 passed in case titled as "Lalit Goel vs. Sandeep Nagariya & Anr." bearing Ct. No. 1074/18, whereby revisionist was summoned to face trial for offence punishable under Section 138 NI Act is set-aside. Revision petition stands allowed.
TCR be sent back along with copy of this order. File be consigned to record room.
Announced in the open court on 16.01 2024.
Digitally signed by GAUTAMGAUTAM MANAN MANAN Date:
2024.01.16 14:18:47 +0530 GAUTAM MANAN ASJ-05 /EAST KARKARDOOMA COURTS DELHI Criminal Revision Page 12 of 12