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[Cites 9, Cited by 0]

Delhi District Court

Sh. Naveen Kumar vs Sh. Harish Gupta on 24 October, 2013

                IN THE COURT OF SH. NARINDER KUMAR
           ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI


Criminal Revision No. 179/2013
In the matter of:­


Sh. Naveen Kumar,
Sh. Devki Nandan,
R/o Anaj Mandi Hodal, Hodal,
District Palwal, Haryana.                              ....Appellant

      Versus

Sh. Harish Gupta,
Proprietor of M/s Harish Gupta & Co.
514, Lahori Gate, Delhi­6                              ....Respondent


Date of Institution: 28.09.2013
Date of Judgment:  24.10.2013
                                 J U D G M E N T

Present revision petition has been filed against order dated 29.08.2013 passed by learned Metropolitan Magistrate in complaint case no. 7530/1 instituted against him (petitioner) by Harish Gupta (respondent herein) under Section 138 of Negotiable Instruments Act (hereinafter referred to as "the Act").

2. Vide impugned order, learned Metropolitan Magistrate has dismissed application under Section 145 (2) of the Act filed by the petitioner in the aforesaid complaint case, while observing that in view of the bar created by step no. II of the guidelines laid down by Hon'ble High Court in "Rajesh Aggarwal Vs. State and Anr. 171 (2010) DLT 1 51", accused­petitioner could not maintain the application at stage III of the guidelines laid down in the said judgment.

In Rajesh Aggarwal's case (supra) our own Hon'ble High Court has prescribed procedure to be followed for trial of cases U/s 138 of the Act and the same reads as under:­ "Step I - On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint & documents and if commission of offence is made out, take cognizance & direct issuance of summons of accused, against whom case is made out.

Step II - If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice U/s 251 Cr.P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under Sec.145(2) of NI Act for recalling a witness for cross examination on plea of defence.

Step III - if there is an application U/s 145(2) of NI Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant.

Step IV - To hear arguments of both sides.

Step V - To pass order/judgment."

3. As per step no. II, learned Metropolitan Magistrate was to ask the accused ­petitioner to take notice under Section 251 CrPC and accused was to enter his plea of defence and then the Court was to list the matter for defence evidence, unless an application was filed by the accused under Section 145 (2) of the Act for recalling of witness of the complainant, for the purpose of cross examination.

4. A perusal of impugned order would reveal that learned Metropolitan Magistrate did not ask the accused to take notice under Section 251 CrPC. The plea of the accused recorded by learned 2 Metropolitan Magistrate on 11.07.2013 has been recorded under Section 251, 263(g), 313 and 281 (6) CrPC.

5. Trial Court record does not reveal that any notice under Section 251 CrPC was served upon the accused, as provided under step II of the aforesaid guidelines. Therefore, the impugned order deserves to be set aside.

6. In view of the above discussion, revision petition is allowed with the direction for service of notice under Section 251 CrPC upon the accused, instead of reading over to him contents of complaint, and then to proceed afresh as per procedure laid down by Hon'ble High Court.

7. Learned counsel for respondent submits that he has no objection for consideration of the application under Section 145 (2) of the Negotiable Instruments Act already filed by the accused­petitioner before learned Trial Magistrate after the accused is asked by the Trial Court to take notice under Section 251 CrPC and he enters his plea of defence.

8. Trial Court record be returned. Revision file be consigned to Record Room.

9. Parties to appear before learned Metropolitan Magistrate on 30.10.2013 at 2 pm. Announced in Open Court on 24.10.2013 (Narinder Kumar ) Additional Sessions Judge(Central) Delhi.

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