Delhi District Court
Deepa Mulchandani vs The State (Govt. Of Nct Of Delhi) on 18 April, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 162/2022
CNR No.: DLCT01-005359-2022
Deepa Mulchandani
Director
Arihant Electro Transworld LLP
Resident of: BH-19, Shalimar Bagh,
Delhi-110088
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Varun Gugnani
S/o Sh. Ashok Kumar Gugnani
Proprietor of: Klick Electricals Industries
Plot No. D-268, Sector-5,
Bawana Industrial Area, Delhi-110039
..... Respondents
Criminal Revision No. 163/2022
CNR No.: DLCT01-005358-2022
Deepa Mulchandani
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Varun Gugnani
..... Respondents
Date of Institution : 26.03.2022
Date of Arguments : 18.04.2022
Date of Judgment : 18.04.2022
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Criminal Revision No. 177/2022
CNR No.: DLCT01-005727-2022
Deepa Mulchandani
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Varun Gugnani
..... Respondents
Criminal Revision No. 178/2022
CNR No.: DLCT01-005728-2022
Deepa Mulchandani
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Varun Gugnani
..... Respondents
Date of Institution : 02.04.2022
Date of Arguments : 18.04.2022
Date of Judgment : 18.04.2022
JUDGMENT
1. The criminal revision petitions under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') are directed against order dated 07.03.2022 and 29.03.2022 (In short 'the impugned orders') in complaint cases under Section 138 of 'The Negotiable Instruments Act, 1881' (In short 'NI Act') vide CC No. 20685/2018 and 20686/2018 titled as 'Varun Gugnani vs. Deepa Mulchandani & Anr.'.
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2. The respondent (Hereinafter referred to as 'the complainant') instituted the said complaint cases against the petitioner contending infraction of provision of Section 138 NI Act on account of dishonour of the cheques issued by the petitioner against PVC wires supplied to the petitioner's company, namely, 'M/s. Arihant Electro Transworld LLP' (the accused No. 2).
3. The trial Court, vide order dated 10.01.2019, summoned the petitioner in the said complaint cases. However, the petitioner did not appear and therefore, the trial Court issued NBW against him vide orders dated 30.11.2019 and 17.11.2021.
4. On 07.03.2022, Ld. Counsel for the petitioner appeared. The trial Court dismissed an application filed by Ld. Counsel for the petitioner for cancellation of NBW and directed the petitioner to appear on 14.03.2022.
5. On 14.03.2022, Ld. Counsel for the petitioner appeared. The petitioner did not appear. The petitioner did not furnish bail bond. The trial Court granted last opportunity to the petitioner to furnish bail bond subject to cost of Rs. 3,000/-.
6. On 29.03.2022, the petitioner did not appear before the trial Court. The petitioner filed an application for exemption from personal appearance. The trial Court dismissed the said application with the observation that the petitioner has not appeared and she has not furnished bail bond. The trial Court imposed further cost of Rs. 3,000/-. The trial Court again issued NBW against the petitioner returnable for 19.04.2022.
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7. Feeling aggrieved with the impugned orders directing issuance of NBW and imposition of costs, the petitioner preferred the said criminal revision petitions.
8. Ld. Counsel for the petitioner contended that the trial Court committed serious error of law while rejecting application for seeking cancellation of NBW issued against the petitioner vide order dated 07.03.2022. He contended that the trial Court had issued summons vide order dated 30.11.2019 returnable for 27.02.2020. He contended that the Presiding Officer of the trial Court was on leave on 27.02.2020 and the case was adjourned to 08.07.2020 for further proceeding. He contended that the case was again adjourned to 19.03.2021 as the Presiding Officer was on leave on 18.11.2020 and thereafter, the trial Court issued Court notice on 19.03.2021 for 19.05.2021. He contended that the Courts were not functioning due to pandemic and the case was taken up on 17.11.2021 on which date the trial Court issued NBW against the petitioner. He contended that the petitioner was not residing at the given address and she was not served with the summons. He contended that the petitioner was not served with the Court notice issued vide order dated 19.03.2021. He contended that the trial Court passed the impugned order dated 07.03.2022 mechanically without assigning any reason. He contended that the trial Court did not consider the averments made in the application seeking cancellation of NBW. He contended that the trial Court had no cogent reason to dismiss application seeking cancellation of NBW.
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9. Ld. Counsel for the petitioner contended that the trial Court allowed application for exemption from personal appearance vide order dated 14.03.2022. He contended that the trial Court also imposed cost of Rs. 3,000/- for non-furnishing of bail bond. He contended that the trial Court never passed any order directing the petitioner to submit bail bonds. He contended that the trial Court did not consider that the petitioner was unwell and therefore, she filed an application for exemption from personal appearance. He contended that the trial Court did not consider medical record furnished by the petitioner. He contended that the trial Court acted mechanically and issued NBW against the petitioner vide impugned order dated 29.03.2022.
10. Ld. Counsel for the complainant contended that the petitioner is deliberately avoiding the proceeding. He contended that the case is not able to proceed since 30.11.2019 on account of non-appearance of the petitioner. He contended that the trial Court was justified in taking recourse to coercive method to ensure the appearance of the petitioner. He also contended that criminal revision petition against an order issuing NBW against the petitioner is barred under Section 397 (2) Cr.P.C. He relied on judgments in Virkaran Awasty vs. State of NCT of Delhi, Crl. M.C. 2229/2017 decided on 01.11.2017, Surender Kumar Madan vs. State (NCT of Delhi), Crl. Revision No. 9/17 decided on 19.01.2017 and Sh. Jai Karan vs. The State, Crl. Revision No. 53/11 decided on 27.08.2011.
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11. To being with. A complaint case under Section 138 NI Act is a summary trial case. The procedure provided under Section 262 to 265 in Chapter XXI Cr.P.C. apply to such trial. In such a case, the Magistrate must not issue NBW at the first instance. The Magistrate must issue bailable warrant to secure presence of the accused.
12. Section 87 Cr.P.C. provides that the Court must record reasons in writing while issuing a warrant of arrest. A complaint case under Section 138 NI Act is a quasi criminal case. Issuance of warrant of arrest at the first instance without recording reasons for issuance of warrant of arrest is an exercise of jurisdiction with material illegality and irregularity. Warrant of arrest exposes a person to arrest and it would infringe his right to life and liberty.
13. In the present case, as noted above, the trial Court, vide order dated 30.11.2019, issued warrant of arrest against the petitioner without perusing the process report that a servant met at the given address who stated that owner was out of station and there was no responsible person in the office.
14. Thereafter, the proceeding could not take place as the Presiding Officer was on leave on 27.02.2020 and 18.11.2020.
15. The trial Court issued Court notice, vide order dated 19.03.2021 for 19.05.2021 and in the meanwhile, the Court did not function on account of pandemic and the case was taken up on 17.11.2021.
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16. This Court does not find any reason for the observation of the trial Court, as contained in order dated 17.11.2021 that the petitioner was avoiding appearance and concealing herself. The report dated 05.03.2022 submitted by PS Karol Bagh states that the said addresses were already sold and the petitioner had no concern with the said addresses.
17. The trial Court did not exercise its jurisdiction properly while rejecting application for cancellation of NBW issued against the petitioner, and passed impugned order dated 07.03.2022 without considering the reports that the petitioner was never served with the summons of the case. In any case, issuance of NBW against the petitioner was highly improper.
18. The trial Court did not consider that it has not passed any order admitting the petitioner on bail and there was no occasion for furnishing bail bond subject to cost of Rs. 3,000/-. The trial Court passed order dated 14.03.2022 without examining the Court.
19. The trial Court did not consider that the petitioner was appearing through her counsel. The trial Court did not consider medical certificate dated 28.03.2022 filed by the petitioner and committed grave error of law in issuing NBW against the petitioner and enhancing cost of Rs. 6,000/-.
20. An order issuing a warrant of arrest cannot be considered as an interlocutory order. Such an order is a final order so far as proceeding of the Court is concerned. Such an order exposed the petitioner to arrest and deprivation of liberty.
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21. Such an order can only be termed as an order in aid of the proceeding, if there was jurisdiction and sufficient reason for issuance of warrant of arrest.
22. The trial Court has jurisdiction to issue warrant of arrest in lieu of summons. However, such jurisdiction must be exercised judiciously and in view of nature of the case, conduct of the party and interest of justice. In the present case, the trial Court exercised its jurisdiction in issuing warrant of arrest against the petitioner with material illegality and irregularity and such an order would occasion miscarriage of justice, if it is allowed to stand.
23. In Virkaran Awasty vs. State of NCT of Delhi (supra), the case related to cancellation of 'Open Non-Bailable Warrant' in a case relating to fraud committed by the petitioner who shifted to UK during investigation and did not join investigation and for that reason, NBWs were issued against him. In that context, Hon'ble High Court of Delhi observed that the trial Court issued warrant of arrest after proper consideration of facts and circumstances of the case.
24. Accordingly, the criminal revision petitions are allowed and the impugned orders dated 07.03.2022, 14.03.2022 and 29.03.2022 are set-aside.
25. The order directing issuance of warrant of arrest against the petitioner vide order dated 30.11.2019 and 29.03.2022 are set-aside and orders dated 14.03.2022 and 29.03.2022 imposing cost of Rs. 6,000/- are also set-aside.
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26. The petitioner is directed to appear before the trial Court on 19.04.2022. The trial Court is directed to admit the petitioner on bail. The petitioner is directed to furnish bail bond to the trial Court. The trial Court is further directed to proceed with the trial of the case expeditiously. The trial Court shall not grant any unnecessary adjournment to the petitioner. The trial Court shall make endeavour to decide the case within three months.
27. Trial Court record alongwith a copy of judgment be sent to trial Court. Revision file be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2022.04.19 10:13:58 +0530 Announced in the open Court SANJAY SHARMA-II on this 18th April, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 178/2022 Deepa Mulchandani vs. State & Anr. Page No. 9 of 10 Deepa Mulchandani vs. State & Anr. CNR No.: DLCT010057282022 Crl. Revision No. 178/2022 18.04.2022
Proceedings convened through Video Conferencing. Present : Mr. Ashok Chhaparia, Advocate for the petitioner.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent No. 1.
Mr. Rajinder Pal Singh, Advocate for the respondent No. 2.
The Court has heard arguments. Vide separate judgment, the criminal revision petition filed by the petitioner is allowed. The revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.04.19
10:14:10 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
18.04.2022
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