Org Informatics Ltd. vs State & Anr.
2011 Latest Caselaw 3636 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl. M. C. No.2409/2011

                                   Date of Decision : 01.08.2011

ORG INFORMATICS LTD.                            ..... Petitioner
                               Through: Mr. Sanjay Gupta, Adv.

                                Versus

STATE & ANR.                                  ...... Respondents

Through: Mr. Yudhishtar Kahol, APP

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment? NO

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in the Digest ? YES

V.K. SHALI, J. (oral)

1. This is a criminal misc. main petitions filed under Section

482 Cr.P.C. for setting aside the order dated 30.09.2010

and 12.01.2011 passed by the learned Metropolitan

Magistrate in complaint case no. 812/2010 and the order

dated 18.05.2011 passed by the learned Additional

Sessions Judge in criminal revision petition no. 34/2011.

2. It may be pertinent here to mention that criminal misc.

main cases bearing no. 2410 to 2422 are also between the

same parties challenging the said three orders except the

fact that they are passed in different complaint cases.

This case will be treated as a lead case giving the reasons

for the dismissal of the petition which would be equally

applicable to the other petitions.

3. The brief facts of the case are that the respondent no.

2/IBM India Pvt. Ltd. filed a complaint under Section 138

of the Negotiable Instrument Act against the present

petitioner, ORG Informatics Ltd. and its three Directors,

namely, Ajoy Khandheria, Rajesh Suri and Sushil Kumar

who are the petitioner nos. 2 to 4. The petitioner

no.1/company had allegedly issued cheque for a sum of

Rs.25,00,000/- to the respondent no. 2 which was

dishonoured on presentation. It was also alleged that the

petitioner nos. 2 to 4 were the directors of petitioner no.

1/company and were responsible for the conduct of the

business of the petitioner company, and therefore,

vicariously liable for the commission of the offence. The

respondent no. 2 complied with the statutory provisions of

the issuance of demand notice etc. The same is alleged to

have not been complied with by the petitioners,

accordingly, the aforesaid complaint was filed against the

present petitioners by the respondent no.2. Along with the

complaint an affidavit was filed by way of pre summoning

evidence and the learned Magistrate issued notice to the

present petitioners. On appearance, notice under Section

251 Cr.P.C was given to them through their counsel on

08.04.2010 and thereafter the matter was adjourned to

12.05.2010 for prosecution evidence.

4. On 12.05.2010 the Presiding Officer was on leave and the

matter was adjourned to 08.07.2010. On 08.07.2010, the

respondent no. 2 made a statement that the affidavit by

way of evidence filed by it at the pre summoning stage may

be treated as post summoning evidence also. The matter

was adjourned for mediation which did not yield any

result. Thereafter the matter was adjourned to 23.09.2010

for the purpose of cross examination of the respondent

nos.2's witnesses. On 30.09.2010, the case was

transferred to Ms. Surbhi Sharma Vats. The learned

Magistrate who noted that in view of the directions passed

by the High Court of Delhi in the judgment titled Rajesh

Agarwal Vs. State & Anr. 171 (2010) DLT 51, Crl. Misc.

No. 1996/2010, the matter shall be proceeded as summary

trial. Accordingly, the matter was adjourned to

12.01.2011 for the defence evidence.

5. On 12.01.2011, the learned Metropolitan Magistrate noted

that a perusal of the record show that the complainants

evidence has not yet been started and on account of an

inadvertent mistake the matter was adjourned for defence

evidence. It was observed that in terms of the judgment of

this Court in Rajesh Agarwal (Supra) read with section

143 of the Negotiable Instrument Act and Section 263(g)

Cr.P.C. the defence of the accused has to be recorded, and

accordingly, the matter was adjourned to 17.03.2011.

6. The petitioners feeling aggrieved by the orders dated

30.09.2010 and 12.01.2011 filed a revision petition before

the Sessions Court which was dismissed.

7. The contention of the learned counsel for the petitioners

before the revisionist court was two-fold, which was sought

to be raised before this Court also.

8. The first contention raised before the learned Additional

Sessions Judge was that even after having proceeded to

record the evidence of the respondent/complainant after

framing the notice shows the clear intention of the learned

Metropolitan Magistrate that he was to follow the

procedure prescribed for summon trial offence under

Section 251 to 259 Cr.P.C. and having done so the

Magistrate could not have reviewed his own order by

passing the impugned order dated 30.09.2010 and

12.01.2011 observing that the case shall be proceeded as

summary trial. It was contended by the learned counsel

for the petitioners that in terms of the judgment of the

Apex Court in Adalat Prasad Vs. Rooplal Jindal & Ors.

(2007) 7 SCC 338, the learned Magistrate could not have

reviewed his own order.

9. The second submission of the learned counsel for the

petitioners is that by the impugned order, the learned

Magistrate has directed the complainant to file his

statement of defence. It was contended that even though

it was assumed that the Magistrate has to follow the

summary trial procedure in terms of the Rajesh Agarwal

case (Supra), the same could not be followed

retrospectively as the learned Magistrate had already

proceeded to deal with the case by following the procedure

of a summons trial case. Both these pleas were negated

by the learned Additional Sessions Judge by a detailed

order and it was observed by him that no prejudice was to

be caused to the rights of the present petitioners by

following the directions given by the High Court of Delhi in

Rajesh Agarwal case (supra) and that the petitioners were

at liberty to file a case under Section 145(2) of the

Negotiable Instrument Act for seeking the recall of the

witnesses for the purpose of examination of their plea of

defence. The petitioners have preferred the present

petition by invoking Section 482 Cr.P.C. as they were still

not satisfied.

10. I have heard the learned counsel for the petitioners and

have also gone through the two judgments that were relied

upon by the petitioners in respect of his submissions

which were made by him before the Sessions Court. I

have also gone through the impugned orders.

11. At the outset, it may be pertinent here to mention that

although Section 482 Cr.P.C. starts with a non obstante

clause and reiterates powers of the High Court to pass any

order to prevent the abuse of process of law or to pass any

such order to secure the ends of justice, is not conditioned

or curtailed by any provision but still Court has the

discretion to see whether the invocation of Section 482

Cr.P.C. is justified or not. It means that even if a party

has preferred a revision petition under Section 397 Cr.P.C.,

he can still prefer a petition under Section 482 Cr.P.C. if

the ingredients for the application of Section 482 Cr.P.C.

are satisfied, namely, the fact that the situation is such

which would warrant the interference by the High Court

for the purpose of preventing the abuse of processes of law

or to secure the ends of justice. In the instant case, I do

not find that there is any possibility of interference by the

High Court as there is no abuse of processes of law nor

does any order require to be passed that is contrary to the

one which has been passed by the Sessions Court which

directed the petitioners to seek a recall of witnesses under

Section 145 (2) of the Negotiable Instrument Act for the

purpose of establishing his defence. It may also be

pertinent here to mention that Section 397 sub clause 3 of

Cr.P.C. prohibits a party from filing a second revision

petition. The present petitioners have already chosen to

file a petition before the Sessions Court and having done

so, they are prohibited from filing a second revision petition

even though it has been termed as a petition under section

482 Cr.P.C. Having said so, a perusal of the provisions

under Section 143 read with Section 145 of the Negotiable

Instrument Act would make it amply clear that the concern

of the legislature, while incorporating Section 143 and 145

by way of amendment w.ef. 06.02.2003, was essentially to

curtail the delay which was occurring in the disposal of

these complaints under Section 138 of the Negotiable

Instrument Act. The mandate of the law was that the case

should be tried summarily as far as possible and further,

the trial should be conducted on day to day basis and

preferably be disposed of within a period of six months. In

the instant case, the entire effort of the petitioners seems

to be to scuttle the trial and indulge in dilatory tactics.

The petitioners had already brought the matter before the

High Court earlier in the first round and when, it was

disposed of by Hon'ble Mr. Justice A. K. Pathak on

29.09.2010. In the present case also the learned

Additional Sessions Judge has specifically observed that no

prejudice is likely to be caused to the petitioners in the, the

trial proceeds according to summary procedure and the

only thing that is to be done by the present petitioner is to

file their statement of defence and then seek a recall of the

complainant/respondent witness for the purpose of cross-

examination as the complainant has already made a

statement that the evidence which has been filed by way of

affidavit at the stage of pre summoning may also be treated

as evidence at the stage of post summoning and therefore,

in my considered view the only purpose of filing the present

petition is to indulge in dilatory tactics, which cannot be

permitted by the Court. The plea that the learned Trial

Court has reviewed its own order or that the judgment title

Rajesh Agarwal case (Supra) has been applied

retrospectively have already been dealt with by the

Sessions Court. I feel that it need not be gone into afresh

by this Court.

12. For the reasons mentioned above, I do not find any merit in

the petition and accordingly, all the present petitions are

accordingly dismissed.

13. Dasti.

V.K. SHALI, J.

August 01, 2011 KP