Delhi District Court
Jaipuria Buildtech Pvt. Ltd vs Jindal Promoters P. Ltd on 5 December, 2016
Crl. Rev. No.241/16
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision No. : 241/2016
Under Section : 138 of Negotiable instruments Act, 1881
Police Station : Anand Vihar
CC No. : 288/13
Unique I.D. No. : 454622016
In the matter of :-
1. JAIPURIA BUILDTECH PVT. LTD.
Through its MD/Director/Authorised Signatory,
1302, SKY Tech Magad Sector-3,
Vaishali, Ghaziabad, U.P.
2. Sh. ASHOK GOYAL
Director/Authorised Signatory,
S/o. Sh. Anand Prakash Goyal,
R/o. 1302, SKY Tech Magad Sector-3,
Vaishali, Ghaziabad, U.P.
3. Ms. VANDANA GOYAL
Director/Authorised Signatory,
W/o. Sh. Ashok Goyal,
R/o.1302, SKY Tech Magad Sector-3,
Vaishali, Ghaziabad, U.P.
.............REVISIONISTS
VERSUS
JINDAL PROMOTERS P. LTD.
B-12, E-10-15, Triveni Complex,
Jawahar Park, Laxmi Nagar,
Vikas Marg, Delhi-110092.
(Through its Director/AR Sh. Jaipal Singh Chauhan)
.............RESPONDENT
Page 1 of 6 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi
Crl. Rev. No.241/16
Date of Institution : 03.11.2016
Date of Receiving : 04.11.2016
Date of reserving judgment : 02.12.2016
Date of pronouncement : 05.12.2016
Decision : Petition is Allowed.
ORDER
1. This is a revision petition directed against the order dated 06.09.2016, passed by ld. trial court in the case titled as Jindal Promoters P. Ltd. v. Jaipuria Buildtech, bearing CC No.288/13, PS Anand Vihar, filed under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). Vide impugned order, trial court directed revisionist herein to submit the details of passport and further directed to file security to the tune of cheque amount of Rs.5 crores, while deciding application for impounding the passport filed by the respondent.
BRIEF FACTS OF THIS CASE : -
2. Briefly stated, the relevant facts giving rise to revision petition in hand are that respondent filed a complaint under Section 138 of the Act against the petitioners and petitioners were summoned as accused in that case. The case was at the stage of statement of accused (S.A.) since 06.01.2016, when an application was filed by respondent herein for impounding the passport of the accused. Apart from accused no.1 being a company, there were two accused persons namely Mr. Ashok Goyal and Ms. Vandana Goyal. Vide impugned order, ld. ACMM rejected the prayer of respondent herein to impound the passport of the accused persons, however, he directed to furnish details of their passport before the court and also to file appropriate security to the tune of cheque amount, so as to ensure that the financial interest of the respondent herein was protected.
Page 2 of 6 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.241/16 GROUNDS : -
3. Being aggrieved of the impugned order dated 06.09.2016, petitioners have filed this revision petition on following grounds seeking revision of aforesaid order :-
● That the impugned order dated 20.09.2016 is against the sanctity of law as the trial court did not appreciate that the accused persons have been regularly appearing before the court either in person or through counsel, therefore, the apprehension of the complainant that the directors of the accused persons are trying to leave the country so as to escape their liability, is groundless.
● The trial court did not appreciate the statutory provisions of law, wherein as per Section 436 Cr.P.C harsh and onerous conditions cannot be imposed in bailable offences. Trial court also did not appreciate that the present matter was not a recovery proceedings so as to validate or justify the imposition of such harsh and onerous conditions on the revisionists. ● Trial court did not appreciate that the foundation of the criminal justice system is that a person is presumed innocent unless proven guilty, therefore, imposition of onerous conditions upon the revisionists in a bailable offence tantamount to conviction before the conclusion of the trial. ● Trial court did not appreciate and consider the basic principal of criminal jurisprudence that even if at all a person is convicted in 138 N.I. Act case, even then no provision of the Code of Criminal Procedure empowers courts to initiate recovery proceedings in case of such conviction. ● Trial court did not appreciate the law as well as the arguments advanced by the counsel for the revisionists that it is a well settled preposition of law that imposition of such unreasonable condition is not only beyond the Page 3 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.241/16 preview of the provisions of Code of Criminal Procedure, but also beyond the powers of the court. Discretion does not mean that it has no arena or boundary. No court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness. ARGUMENTS :-
4. Ld. counsel for petitioners argued on the lines of grounds taken in the petition and submitted that the trial court had no authority to give directions to the petitioners either to furnish particulars of their passport or to furnish any security against the cheque amount. He also referred to two case laws cited as Suresh Nanda v. CBI, AIR 2008 SCC 1414 and Sushil Suri v. Sate (2006) ILR 1 Delhi 785, in support of his arguments.
5. On the other hand, ld. counsel for respondent submitted that the petitioners have cheated the respondent herein and they are likely to flee away, therefore the trial court was justified in passing such directions. He referred to an order passed by Delhi High Court in the case of Suresh Nanda v. CBI, 2011 SCC OnLine DEL 4015.
FINDINGS :-
6. I have given due consideration to the rival contentions and to the record placed on the record.
7. In the case of Suresh Nanda v. CBI, Delhi High Court had given directions to the accused to furnish his itinerary and to furnish security while going abroad. Such directions were given to him, while allowing the accused to visit abroad i.e. U.K. However, it has to be seen that in that case the accused was facing the trial under Prevention of Corruption Act 1988 and was charged with non- bailable offences. Therefore, any approach of court taken in that case cannot Page 4 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.241/16 be guiding factor for the purpose of this case. In the case of Sushil Suri (supra), Delhi High Court was dealing with similar kind of case filed under Section 138 of the Act and it was held that in bailable offences court cannot impose any condition upon the accused, except a reasonable condition as to the surety. In that case also while granting bail trial court had imposed condition upon the accused to seek permission from the court before going out of India. High Court had set aside that part of direction given to the accused to seek permission from the court before going abroad. High Court had given direction to the accused to inform the court in writing regarding his itinerary before going abroad.
8. The issue involved in this case is related to direction to furnish the particulars of passport and to furnish security to the tune of cheque amount. I find that none of these directions could have been imposed upon the accused by the trial court as condition for bail or otherwise. The trial court could have at the most, asked the accused to inform the court in writing about his itinerary before going abroad. Seeking security from the accused to the tune of the cheque amount is beyond the jurisdiction of Metropolitan Magistrate and therefore, such kind of the direction could not have been given. A distinction must be made between the provisions available under Civil Procedure Code in a suit for recovery and provisions under Criminal Procedure Code in trial for offence under Section 138 of the Act. Metropolitan Magistrate has to be guided by Cr.P.C rather than C.P.C. Even NI Act is silent about any such powers vested with Metropolitan Magistrate. In absence of any such power, Metropolitan Magistrate cannot seek security for the cheque amount.
9. Therefore, I do find that the directions passed by ld. ACMM in the impugned order against the petitioners are not sustainable in the eyes of law and such Page 5 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Crl. Rev. No.241/16 directions do affect the substantial right of the accused and also causes a prejudice to them.
DECISION :-
10. Keeping in view my aforesaid findings, discussions and observations, present revision petition is allowed and the impugned order dated 06.09.2016 is set aside.
11. TCR along with copy of order be sent back to the trial court.
Announced in the open court (PULASTYA PRAMACHALA) today on 05.12.2016 Additional Sessions Judge (Shahdara), (This order contains 6 pages) Karkardooma Courts, Delhi Page 6 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi