Rakesh Chand Maheshwari vs Asad Raza Zaidi & Anr.
2012 Latest Caselaw 5222 Del

*               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

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

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

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

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

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.

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

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