* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.NO.3020/2012 & Crl.M.A.15876/2012
Decided on : 03.9.2012
RAKESH CHAND MAHESHWARI ......Petitioner
Through: Mr.H.C.Kharbanda & Mr.M.P.S.
Tomar, Advocates.
Versus
ASAD RAZA ZAIDI & ANR. ......Respondents
Through: Mr.Sunil Sharma, APP for the State.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. This is a petition under Section 482 Cr.P.C. for quashing of order dated 7.8.2012 passed by Addl. Sessions Judge- 04, South East) Saket Court, Delhi in Crl.Rev. No.33/2012 as well as the complaint case no.2798/2010 titled Sh.Asad Raza Zaidi Vs. Tera Real Estate Pvt. Ltd. under Section 138 of NI Act pending before Ms.Ankita Lal, MM- 03, (South East), Saket, New Delhi.
2. Briefly stated the facts of the case are that a complaint came to be filed by the respondent Asad Raza Zaidi Crl. M.C. No.3020/2012 Page 1 of 8 against M/s Terra Real Estate Pvt. Ltd. and its Directors Sh.K.A.Kabra(R-2), Smt. Archana Maheshwari(R-3), Sh.Rakesh Chand Maheshwari(R-4) and Sh.S.C. Maheshwari (R-5).
3. The allegations in the complaint were that Asad Raza Zaidi was a property broker who had helped the respondent no.1/M/s Terra Real Estate Pvt. Ltd. and its Directors to enter into an agreement for purchase of a property bearing no.A-4, Chirag Enclave, New Delhi sometime in 2006. These agreements to sell are purported to have been executed between different parties and the company on 28.1.2005, 29.5.2006 and 31.10.2006. The necessity of entering into different agreements are stated to have been occasioned on account of the fact that the respondent herein were not able to keep their promise of paying the complete sale consideration. In any case, that is beside the point. The fact of the matter is that ultimately a final deal is purported to have been struck between one owner of the property known as Sh.Faiz Murtaza Ali and the said Crl. M.C. No.3020/2012 Page 2 of 8 respondents. The sale consideration of the property was stated to be `10.50 Crores while as, it was alleged to have shown on papers only a sum of `2.5 crores. The present petitioner is purported to have issued a cheque bearing no.0588416 dated 1.7.2010 for a sum of `1 crore drawn on HDFC Bank and payable to the respondent (property broker) in token of his commission for having provided the services. The said cheque is alleged to have bounced and this resulted in filing of the complaint against the present petitioner and M/s Terra Real Estate Pvt. Ltd., K.A.Kabra, Archna Maheshwari, Rakesh Chand Maheshwari, S.C. Maheshwari.
4. During the pendency of the petition, M/s Terra Real Estate Pvt. Ltd., K.A.Kabra, Archna Maheshwari and S.C. Maheshwari were dropped as accused persons at different stages including the one by virtue of a judicial order. So far as K.A. Kabra and Archana Maheshwari are concerned, before dropping them as accused by the order dated 08.7.2011, the trial court had given a common notice to Crl. M.C. No.3020/2012 Page 3 of 8 K.A.Kabra, Archana Maheshwari and the present petitioner. After quashing of the proceedings against K.A.Kabra and Archana Maheshwari, the petitioner filed an application before the learned Magistrate which was taken up on 15.2.2012 for the purpose of reframing a notice under Section 251 Cr.P.C. against him on the ground that two of the Directors were dropped from the array of respondents by virtue of a judicial order. The application was disallowed by the learned Magistrate, since independent plea of guilt in pursuance to the notice had been recorded, therefore, it was observed that it does not warrant framing of fresh notice, so far as the present petitioner is concerned.
5. Feeling aggrieved by the said order, the present petitioner preferred the revision which came to be listed before the learned Sessions Judge bearing no.33/12 titled Rakesh Chand Maheshwari Vs. Asad Raza Zaidi. The present petitioner was unsuccessful in this revision in getting fresh notice under Section 251 Cr.P.C. drawn against him. The learned Sessions Judge as well as the Crl. M.C. No.3020/2012 Page 4 of 8 learned Magistrate had observed that the petitioner was indulging in dilatory tactics, because he had not even filed even an application under Section 145(2) of the NI Act in terms of the procedure for the purpose of cross examination of the complainant and, therefore, this was only a ploy to get a fresh opportunity to file such an application. It may be mentioned here that the learned Magistrate while dismissing the application of the present petitioner for being discharged had permitted him to file an application under Section 145 (2) of NI Act within one month from the said date.
6. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and gone through the record.
7. There is no dispute about the fact that the present petitioner had issued a cheque for a sum of `1 crore in favour of the respondent. It is this cheque which has been dishonoured, therefore, the petitioner has been impleaded as an accused in the complaint in the capacity of a Director of M/s Terra Real Estate Pvt. Ltd. or in other Crl. M.C. No.3020/2012 Page 5 of 8 capacity by invoking Section 141 of NI Act. It is the petitioner himself who has been arrayed as an accused in the capacity of a drawer of the cheque which has purportedly bounced. Therefore, the case of the petitioner cannot be equated with the case of Archana Maheshwari or K.A.Kabra. Both of these accused persons were impleaded as the Directors under the concept of vicarious liability while as the present petitioner has been impleaded as an accused in the capacity of a drawer of the cheque. Therefore, there is a distinction between the present case of the petitioner with that of the other accused persons against whom the proceedings have been quashed. In addition to this, if the proceedings against the petitioner are quashed then practically the respondent/complainant will be left without any remedy inasmuch as, all the persons including the one who has drawn the cheque in favour of the respondent/complainant which has got dishonoured will be left without any remedy.
Crl. M.C. No.3020/2012 Page 6 of 8
8. I feel that the application of the present petitioner was rightly dismissed both by the learned Magistrate as well as in the revision which was filed by the present petitioner seeking his discharge. I do not find any infirmity, illegality or impropriety in the order passed by the learned Magistrate by the learned Sessions Judge.
9. Apart from this, there is another disability which the petitioner suffers for getting this petition entertained. This is Section 397(3) Cr.P.C. which clearly bars the filing of a second revision petition. The petitioner having exhausted his remedy of invoking the jurisdiction of the trial court seeking his discharge or filing a revision against the said order and having failed is not permitted in law to file a second revision petition and repeat the same submissions which he had made before the trial court or the Court of Sessions. I therefore, feel that the said statutory bar also comes in the way of the present petitioner.
10. For the reasons mentioned above, the petitioner does not have any case. The present petitioner is an accused in Crl. M.C. No.3020/2012 Page 7 of 8 the capacity of having issued a cheque to the respondent/complainant for payment of commission which has got dishonoured. I therefore, feel that the petition is without any merit and the same is accordingly dismissed.
V.K. SHALI, J.
September 03, 2012 RN Crl. M.C. No.3020/2012 Page 8 of 8