Delhi District Court
Atul Kumar vs . Anurag Bhardwaj on 30 March, 2017
Atul Kumar Vs. Anurag Bhardwaj
CR No: 90/2017
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBI-I
DWARKA COURTS; NEW DELHI
Atul Kumar
Proprietor of M/s Vrinda Electricals
RZH-812, 2nd Floor, Flat No. 202,
Gali No. 14, Near Kenddy Public School,
Raj Nagar, Part-II, Palam Colony,
New Delhi- 110075.
............Revisionist/complai
nant
VERSUS
Anurag Bhardwaj
Proprietor of M/s Maxim IT Services
RZ-175, Pochhan Pur Village,
Sector-23, Dwarka,
New Delhi.
Also at:
412, Indra Nagar,
Near Malik Chowk,
Dehradun-248001
Uttrakhand
........Respondent/Accused
CR No. 90/2017
Date of Institution 27.02.2017
Reserved for orders on 18.03.2017
Order announced on 30.03.2017
JUDGMENT
CR No:90/17 Page 1 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017
1. This is a revision petition under Section 397 Cr.P.C. against the order dated 01.02.2017 passed by Ld. MM-03 (NI Act), Dwarka Court, New Delhi whereby Ld. MM has been pleased to dismiss the complaint filed by the complainant/revisionist under Section 138 of Negotiable Instrument Act , 1881 ( herein after referred to NI Act).
2. Briefly stated relevant facts for the disposal of the revision petition are as under:
3. It is stated in the revision petition that the respondent/accused was on friendly relations with the revisionist/complainant and the revisionist/complainant stood as surety/guarantor for accused ( respondent herein) in connection with credit facilities of Rs. Six lacs taken by accused/respondent from Syndicate Bank, Sector- 23, Dwarka, New Delhi. The accused ( respondent herein) had promised the revisionist/complainant that he shall maintain the financial discipline but the respondent/accused did not make the payment as per schedule and the bank issued notice dated 06.05.2015 to the accused/respondent to clear the amount but with malafide intention, the accused/respondent did not pay any attention to the requests of the bank and shifted his business to CR No:90/17 Page 2 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 Dehradu, Uttrakhand without informing the bank and the revisionist/complainant. It is further stated in the revision petition that bank had also endorsed copy of the notice dated 06.05.2015 to the revisionist/complainant and the revisionist/complainant was asked to make the payment payable by the accused to the bank. It is stated that the revisionist/complainant made repeated requests to the accused to clear the account and the accused/respondent issued two cheques of Rs. Three lacs each bearing no. 305668 and 305669, both dated 12.07.2016, drawn on Syndicate Bank, Mount Carmel School, Sector-22, Dwarka, New Delhi in favour of complainant. The accused/respondent had assured the revisionist that the aforesaid cheques when presented before the bank shall be honoured and when the complainant deposited the said cheques in his bank account maintained with State Bank of Bikaner & Jaipur, Plot No. 4, Block-A, Dwarkadheesh Society, Sector-23, Dwarka, New Delhi, the same were dishonoured wth remarks 'Account closed/payment stopped by drawer' vide returning memos dated 23.08.2016 and 25.08.2016 respectively. It is stated that the respondent/accused had issued the aforesaid CR No:90/17 Page 3 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 cheques to the complainant to deceive and to cheat the complainant. It is further stated in the revision petition that the aforesaid cheques have been issued by the accused towards the discharge of legal liability which are arose pursuant to the complainant/revisionist's standing surety for the accused/respondent in connection with the loan taken by the accused/respondent from Syndicate bank.
4. It is further stated in the revision petition that complainant/revisionist issued notice dated 14.09.2016 to the accused/respondent but the accused/respondent has neither paid the amount nor gave any reply to the notice and thereafter the complainant/revisionist filed a complaint under Section 138 of NI Act before the court of Ld. MM but Ld. MM was pleased to dismiss the same vide order dated 01.02.2017. It is stated that impugned order dated 01.02.2017 passed by Ld. MM is incorrect and unjustified.
5. I have heard Ld. Counsel for the complainant and perused the records.
6. The contention of Ld. Counsel for the complainant/revisionist is that the complaint case under Section 138 of NI Act filed by the complainant CR No:90/17 Page 4 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 fulfilled the conditions of Section 138 NI Act and Ld. MM was not expected to embark upon detailed discussion of the merit/demerit of the case and Ld. MM has not passed any summoning order and has dismissed the complaint without appreciating section 138 of NI Act.
7. Ld. Counsel for the revisionist has contended that at the stage of summoning, Ld. MM was not to look into triable issues but only to pass the summoning order but Ld. MM examined the complaint and instead of passing the summoning order, dismissed the same holding that ' liability of respondent against the complainant has not crystallized'.
8. Ld. Counsel for the revisionist has contended that Ld. MM has not appreciated that debt as contemplated in Section 138 NI Act will also include the debt which is likely to arise in future.
9. Ld. Counsel for the revisionist has relied on following the decisions :
(i) G.L. Sharma Vs. Hemanta Kishore, Crl. A. No. 1400/2011.
(ii) Cisco Systems Capital ( India) Pvt. Ltd. Vs. New Delhi Tele Tech Pvt. Ltd, Crl. M.C. 5027/2014.
(iii) C.V. Alexander Vs. Joseph Chacko, 1995 82 CompCas 368 Ker CR No:90/17 Page 5 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017
(iv) Fiona Shrikhande Vs. State of Maharashtra and Anr. , Crl. Appeal No. 1231/2013 [ Arising out of SLP ( Crl) No. 382 of 2013].
(v) Chandra Deo Singh Vs. Prokash Chandra Bose
& Anr. , 1964 SCR(1) 639.
(vi) Krishan Kathuria Vs. State & Anr., Crl. M.C. 549/2012
(vii) Kumar Saumitra Vs. State & Ors., Crl. M.C. 1584/2015.
(viii) Credential Leasing & Credits Ltd Vs. Shruti Investments & Anr., Crl. L.P. 558/2014
(ix) M/s Balaji Sales Corporation & Ors. s. Him Alloys & Steels Pvt. Ltd. , Crl. M.C. No. 3172/2012.
(x) Rahul Gandhi and Ors. Vs. Dr. Subramanian Swamy & Anr., Crl. M.C. 3332/2014.
10. The revisionist had filed the complaint under Section 138 of NI Act titled as Atul Kumar Vs. Anurag Bhardwaj on the allegations that cheques bearing numbers 305668 and 305669 dated 12 th July, 2016 for a sum of Rs. 3,00,000/- (three lacs) each drawn on Syndicate Bank, Mount Carmel School, Sector-22, Dwarka, New Delhi were issued by the accused/respondent to him on account of standing surety for the credit facility of Rs. 6 lacs availed by accused/respondent from Syndicate Bank.
CR No:90/17 Page 6 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017
11. In the impugned order dated 01.02.2017, Ld. MM has been pleased to observe that Ld. Counsel for the complainant/revisionist has confirmed that till date, no repayment of loan has been done by the complainant. In the impugned order dated 01.02.2017, Ld. MM has been pleased to observe :
'Bare perusal of Section 138 N.I. Act shows that impugned cheque must have been issued in discharge of the debt or liability. The judgments filed by the complainant emphasise that the cheque issued as security will also fall within the ambit under Section 138 NI Act, however, judgments further emphasise that the dishonour of cheque given as security can attract the provision of Section 138 NI Act only if the same was presented when the liability has been assessed and quantified.'
12. The contention of Ld. Counsel for the complainant/revisionist is that complaint under Section 138 NI Act was at the stage of pre- summoning and while passing order under Section 204 Cr.P.C., Ld. MM was not to embark upon a detailed discussion of the merits/demerits of the case and was required only to pass summoning order.
13. In support of his contentions, Ld. Counsel for the revisionist has relied on decisions Fiona CR No:90/17 Page 7 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 Shrikhande Vs. State of Maharashtra and Anr. , Crl. Appeal No. 1231/2013, Chandra Deo Singh Vs. Prokash Chandra Bose & Anr. , 1964 SCR(1) 639, Krishan Kathuria Vs. State & Anr., Crl. M.C. 549/2012, Kumar Saumitra Vs. State & Ors., Crl. M.C. 1584/2015 and Rahul Gandhi and Ors. Vs. Dr. Subramanian Swamy & Anr., Crl. M.C. 3332/2014.
14. In Fiona Shrikhande Vs. State of Maharashtra and Anr. , Crl. Appeal No. 1231/2013, Hon'ble Supreme Court has been pleased to observe :
11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal case is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under CR No:90/17 Page 8 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi and Others ( 1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have.
15. In Chandra Deo Singh Vs. Prokash Chandra Bose & Anr. (Supra), Hon'ble Supreme Court has been pleased to observe:
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Section 203 of the Code of criminal Procedure provides that where the CR No:90/17 Page 9 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 Magistrate dismisses a complaint because in his judgment there is no sufficient ground for proceeding with the trial, he shall record his reasons for doing so.
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16. In Krishan Kathuria Vs. State & Anr., Crl.
M.C. 549/2012 & Crl. Appeal No.1922/12, Hon'ble High Court of Delhi has been pleased to observe:
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The scope of enquiry is extremely limited only to ascertainment of truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon detailed discussion of the merits/demerits of the case. Again, there is no invariable rule that independent public witnesses are to examined to establish a case as there is no reason to disbelieve the evidence of the complaint at the stage of issuing process on a private complaint. The case is to be judged solely on the allegations made in the complaint and the evidence led by the complainant and it is not within the scope or authority of the Magistrate to make CR No:90/17 Page 10 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 a meticulous or detailed examination of the evidence.
17. In Kumar Saumitra Vs. State & Ors., Crl. M.C. 1584/2015, Hon'ble High Court of Delhi has been pleased to observe:
24. While propounding the settled legal position in respect of issuance of process under Section 204 Cr.P.C., it is recorded by the learned Sessions Judge that it is clear that at the stage of Section 204 Cr.P.C., Court is not required to go into the roving enquiry of merits or demerits of the case, but court is required to look into whether there are sufficient grounds to proceed against accused. " Sufficient grounds to proceed against accused" is a connotation of importance in Section 204 Cr.P.C. . At this stage, court is required to apply its judicial mind to assess whether prima facie there are sufficient grounds to proceed against the accused. Accordingly, the learned Sessions Judge was of the considered view that under Section 204 Cr.P.C., Magistrate is not expected to act only on the bald allegations of complainants but he is required to assess CR No:90/17 Page 11 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 the prima facie value of the evidence led by the petitioners. It cannot be interpreted from Section 204 Cr.P.C.
that the learned Magistrate is required to act blindly without assessing the broader probabilities of the statement of the petitioners/witnesses.(emphasis supplied)
18. In Rahul Gandhi and Ors. Vs. Dr. Subramanian Swamy & Anr., Crl. M.C. 3332/2014, Hon'ble High Court has been pleased to observe:
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Applying the afore-noted parameters to the instant case, this Court finds that the ingredients of the offences alleged are not lacking and sufficient ground to proceed against petitioners certainly exists.
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19. As per decision in Rahul Gandhi and Ors. Vs. Dr. Subramanian Swamy & Anr. ( Supra), as relied by the revisionist, while passing order of summoning, the court has to find that the CR No:90/17 Page 12 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 ingredients of the offences alleged are not lacking.
20. At the stage of issuing process under Section 204 Cr.P.C., Ld. Magistrate is required to satisfy himself on the basis of complaint and the material placed before him that their exist sufficient grounds for proceeding. In Kumar Saumitra Vs. State & Ors. (supra) as relied by the revisionist, Hon'ble High Court has been pleased to hold that it cannot be interpreted from Section 204 Cr.P.C. that the learned Magistrate is required to act blindly without assessing the broader probabilities of the statement of the petitioners/witnesses.
21. In the circumstances, there is no force in the contention of Ld. Counsel for the revisionist that Ld. Magistrate was simply supposed to pass an order of summoning without appreciating that ingredients of the offence are satisfied or not.
22. The another contention of Ld. Counsel for the revisionist is that Ld. MM has not appreciated that the debt as required by Section 138 NI Act would be of future debt also and the cheques in question which were issued for future debts were covered by provision of Section 138 NI Act.
23. Section 138 NI Act reads : -
138. Dishonour of cheque for insufficiency, CR No:90/17 Page 13 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [ a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheuqe has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course CR No:90/17 Page 14 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.- For the purposes of this section, " debt or other liability" means a legally enforceable debt or other liability.
24. The Explanation of Section 138 NI Act provides that for the purpose of section 138 NI Act, the debt or other liability should be a legally enforceable debt or other liability.
25. In Credential Leasing & Credits Ltd Vs. Shruti Investments & Anr., Crl. L.P. 558/2014, Hon'ble High Court of Delhi has been pleased to hold:
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CR No:90/17 Page 15 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 Thus, if the observations made by the Supreme Court in Indus Airways( supra) are understood as laying down a general legal proposition that on the date of issuance of the cheque the debt/other liability should be subsisting to maintain a complaint under Section 138 of the NI Act, the same would not align with the ratio laid down in the earlier decision in Beena Shabeer( supra).
26. It is to be noted that this is not a case wherein surety/guarantor had issued cheque to the creditor for the discharge, in whole or in part, of liability of the principal debtor. Rather this is a case wherein principal debtor has issued cheque to his surety/guarantor as a security. It is not pleaded that any order has been passed by any competent authority whereby the principal debtor has been directed to discharge his liability towards the creditor failing which the surety as furnished by the revisionist has been invoked and the revisionist has been directed to clear the debts owed by the principal debtor/accused.
27. In the impugned order dated 01.02.2017, Ld. MM has been pleased to observe :
CR No:90/17 Page 16 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 Upon going through the complaint and judgments filed by the complainant and upon considering the submissions made by his counsel, this court is of the view that present complaint is not maintainable. Perusal of bare averments made in the complaint shows that liability of respondent against the complainant has not crystallized. The submission of the counsel that liability of surety and borrower is co-extensive has no merit since the co-extensive liability is qua the creditor and principal debtor will not be liable to the surety until the surety has discharged the liability or performed the promise for which he stood as surety. It has confirmed by counsel for the complainant that the complainant has not repaid the loan. According to Section 140 of Indian Contract Act, 1872, rights of surety against principal debtor arises only after surety has paid the debt or performed the promise for which he CR No:90/17 Page 17 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017 stood as surety. Accordingly, an essential ingredient of offence under Section 138 N.I. Act that the cheque must have been issued in discharge of debt or liability is not made.
28. In Credential Leasing & Credits Ltd Vs. Shruti Investments & Anr., ( Supra), Hon'ble High Court of Delhi has been pleased to hold:
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At the same time, I may add that it would need examination on a case to case basis as to whether, on the date of presentation of the dishonoured cheque the ascertained and crystallised debt or other liability did not exist.
29. As per case of revisionist/complainant himself, on the date of presentation of dishonoured cheque the ascertained and crystallised debt or other liability did not exist. In the circumstances the other judgments also as relied by the revisionist are of no help to him.
CR No:90/17 Page 18 of 19 D.O.O. 30.03.2017 Atul Kumar Vs. Anurag Bhardwaj CR No: 90/2017
30. In view of aforesaid discussions, I find no merits in the revision petition and the same is dismissed.
31. Revision File be consigned to record room.
32. A copy of this order be sent to Trial Court for information.
Announced in the open (HARISH DUDANI) Court on 30.03.2017 Special Judge(PC Act)CBI-I Dwarka Courts, New Delhi.
CR No:90/17 Page 19 of 19 D.O.O. 30.03.2017