Delhi District Court
Smt. Kamlesh Jain vs (1) State (Gnct Of Delhi) on 10 February, 2012
IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS
JUDGE: NW03 : ROHINI : DELHI
Criminal Revision No. 56/11
Smt. Kamlesh Jain
w/o late Sh. Prem Chand
r/o 440/5, Chander Nagar,
Rampura, Delhi ..................Revisionist
Versus
(1) State (GNCT of Delhi)
through its Chief Secretary,
Secretariat, IP Estate, N. Delhi
(2) Mohan Lal Sharma
s/o late Sh. Shiv Kumar Sharma
r/o H. No. 372, Onkar NagarB,
Tri Nagar, Delhi35 ..................Respondent
J U D G E M E N T
1. The revisionist has filed this revision u/s 397 Cr. P. C. against the impugned order dated 27082011 passed by Sh. Sunil Kumar, Ld. MM, Rohini Courts, Delhi in complaint case no. 14752/1/2011 titled Mohan Lal Sharma Vs. Ajay Jain & Ors.
2. TCR has already been summoned. I have heard Ld. counsel for the revisionist and the Ld. Sub. APP for the State/ Crl. R. No. 56/11; Smt. Kamlesh Jain Vs. State & Anr. Page 1 of 6 respondent no. 1 and the Ld. Counsel for respondent no. 2 and have perused the entire record.
3. The revisionist has taken the grounds among others in the revisionist petition that Ld. Trial Court has erred in holding that prima facie case / cause of action is made out against the petitioner/ accused no. 2. Ld. Trial Court has further failed to appreciate the fact that petitioner/ accused no. 2 has not issued any cheque to the complainant/ respondent no. 2 and the order for summoning the petitioner/ accused no. 2 is illegal and without any cause of action. There was no occasion for the respondent no. 2 to initiate criminal proceedings against the revisionist as she has never issued the cheque in question to the complainant/ respondent no. 2.
4. The Ld. Counsel for revisionist in support of his arguments has relied upon the judgements reported as Pratap Singh Yadav & Anr. Vs. Atal Bihari Pandey 100 (2002) DLT 673, it was held that proceedings u/s 138 of the Act are not proceedings of civil nature. They are not filed for recovery of money on the basis of the dishonoured cheque. The criminal complaint is filed for punishing the person who had issued the cheque for discharge Crl. R. No. 56/11; Smt. Kamlesh Jain Vs. State & Anr. Page 2 of 6 of the debt and liability. For the purpose of section 138 N. I. Act, the maker of the cheque will be guilty of offence if the cheque bounces. It was further held that petitioner no. 1 has not drawn any cheque in favour of the respondent. It is petitioner no. 2 who had drawn the cheque for Rs. 1,05,000/ at his own bank account for discharging the liability, payment of debt of his father, petitioner no. 1 herein. The offence within the purview of section 138 is committed by petitioner no. 2 whose cheque was bounced by the bank on which it was drawn for insufficiency of funds in the account of petitioner no. 2 (to be precise closure of account) and his subsequent failure to make the payment. It is a criminal offence. Only petitioner no. 2 can be said to have committed the offence covered by Section 138. How will petitioner no. 1 be guilty of an offence u/s 138 of the Act has not been explained. He cannot have vicarious liability for offence by implication or otherwise as certain other persons have by application of Section 141 of the Act. There is no other provision under the Act or under the ordinary criminal law under which petitioner no. 1 could be held guilty of an offence which has been committed by petitioner no. 2 u/s 138 of the Act. Therefore, there is gross miscarriage of Crl. R. No. 56/11; Smt. Kamlesh Jain Vs. State & Anr. Page 3 of 6 justice when the trial Court took cognizance of the offence u/s 138 against petitioner no. 1 and summoned him for standing trial along with petitioner no. 2 and issued notice for offence u/s 138 for trial of petitioner no. 1. To that extent, the notice u/s 251 Cr.P.C. issued by the Trial Court is unsustainable in law and certainly has resulted in miscarriage of justice which warrants interference by this Court.
5. In the present case, the Ld. Counsel for the revisionist has further relied upon the judgement reported as Subhash Bhagat Vs. State of Bihar & Anr. 2010 Crl. L.J. 399, it was held that there were allegations that petitioneraccused had only accompanied his son when complainant advanced loan to his son. No allegation of petitioner having issued cheques to complainant which later bounced. Complainant neither shows any dishonest or fraudulent intention on part of petitioner, accused nor indicates that he induced complainant to give loan. Cheque admittedly issued by the son of the petitioner. It was further held that since bouncing of cheque is individual liability. Order taking cognizance of offences u/s 138 NI Act and section 420 of Penal Code against petitioner accused was liable to be quashed. Whereas Ld. Crl. R. No. 56/11; Smt. Kamlesh Jain Vs. State & Anr. Page 4 of 6 Counsel for the respondent no. 2 in support of his arguments has relied on the judgement reported as Rajesh Aggarwal & others Vs. State & others 2010 (3) JCC (NI) 273.
6. It is an admitted fact that cheque was issued by Ajay Jain son of the revisionist Kamlesh Jain, however, the same was returned unpaid to the complainant respondent no. 2 herein since it was dishonoured by the banker of the accused no. 1 on account of "funds insufficient". The abovesaid judgement relied upon by the counsel for respondent no. 2 is not applicable to the facts and circumstances of the case since there were more than one accused in the said case whereas in the present case, the son of the revisionist issued the cheque and the revisionist has no concern with it. Therefore, in view of the aforesaid judgements relied upon by the counsel for the revisionist herein, the order taking cognizance of the offence u/s 138 N. I. Act is not made out against the accused no. 2 Kamlesh Jain--revisionist herein since the revisionist herein cannot have vicarious liability for the offence committed by accused no. 1. Accordingly, the notice issued to the accused no. 2 Kamlesh Jain by the Ld. MM vide order dated 27082011 is set aside and the accused no. 2 Kamlesh Jain is Crl. R. No. 56/11; Smt. Kamlesh Jain Vs. State & Anr. Page 5 of 6 also discharged from the proceedings before the Ld. Trial Court in the CC no. 14752/1/2011 titled Mohan Lal Sharma Vs. Ajay Jain & others. Accordingly, this revision petition is allowed. TCR along with copy of this order be sent back and thereafter revision file be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 10022012 Crl. R. No. 56/11; Smt. Kamlesh Jain Vs. State & Anr. Page 6 of 6