Delhi High Court
Sadiaq Hussain vs Akhand Bharat Chit Fund Pvt. Ltd. on 5 March, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25th February, 2013
Pronounced on: 5th March, 2013
+ CRL.M.C. 3410/2011
SADIAQ HUSSAIN ..... Petitioner
Through: Mr. Randhir Jain, Adv. with
Mr. Dhananjai Jain, Adv.
versus
AKHAND BHARAT CHIT FUND PVT. LTD. ..... Respondent
Through: Mr. Rajat Mittal, Adv.
+ CRL.M.C. 3455/2011
MOHD.ASFAQ ..... Petitioner
Through: Mr. Randhir Jain, Adv. with
Mr. Dhananjai Jain, Adv.
versus
AKHAND BHARAT CHIT FUND PVT. LTD. ...... Respondent
Through: Mr. Rajat Mittal, Adv.
+ CRL.M.C. 3481/2011
SADIQ HUSSAIN ..... Petitioner
Through: Mr. Randhir Jain, Adv. with
Mr. Dhananjai Jain, Adv.
versus
GEER AAR CHIT FUND PVT. LTD. ..... Respondent
Through: Mr. Rajat Mittal, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. In these three Petitions under Section 482 of the Code of Criminal
Procedure, 1973 (Cr.P.C.), the Petitioner who is an accused in all the
three Complaint Cases Nos.2274/2011, 2277/2011 and 2270/2011 before
the learned Metropolitan Magistrate ('MM'), New Delhi seeks setting
aside of the order dated 18.07.2011 whereby notice under Section 251 of
the Cr.P.C. was served on the Petitioner and the order dated 19.09.2011
whereby the Petitioner's application for supply of the copy of the
complaint and the documents filed with the Complaint was dismissed.
2. The Petitioner's grievance is that the Complaint was instituted before the
Trial Court on 23.09.2009 and was presented before the learned 'MM' on
06.10.2009. On 30.08.2010, the Respondent (Complainant before the
Trial Court) led its pre-summoning evidence and the Petitioner was
directed to be issued summons for 21.02.2011. No steps were taken for
issuance of the process for 21.02.2011. On 19.05.2011, the summons
issued to the Petitioner for 18.07.2011 was returned back unserved. The
Petitioner appeared before the learned 'MM' on 18.07.2011. The
Petitioner requested the Trial Court to supply copy of the complaint and
the documents filed by the Complainant, however, the same was not
supplied and the learned 'MM' proceeded to issue a notice under Section
251 of the Cr.P.C. An application dated 17.09.2011 was moved by the
Petitioner for supply of the copy of the complaint and complete set of
documents and for recalling the order dated 18.07.2011 framing notice
against the Petitioner. The application was, however, dismissed with
costs of `500/-.
3. Learned counsel for the Petitioner urges that the order dated 18.07.2011
framing notice without supplying the copy of the complaint and the
documents filed with it was illegal. When the attention of the learned
'MM' was drawn with regard to the same by moving an Application, it
was dismissed by an order dated 19.09.2011.
4. On the other hand, learned counsel for the Respondent supports the
impugned orders.
5. I have perused the orders relied upon by the learned counsel for the
Petitioner. It is true that in two of the Petitions (Crl.MC.3410/2011 and
Crl.MC.3455/2011) the summons were returned back unserved and the
same was ordered to be served afresh on 18.07.2011. In these two
Petitions, the record does not show that the summons were served upon
the Petitioner. However, in the third Petition (Crl.MC.3481/2011) the
attested copy of the order dated 19.05.2011 placed on record by the
Petitioner reveals that the summons were duly served and therefore, BWs
in the sum of `2,000/- were ordered to be issued through the SHO
concerned. The order further shows that the process fee was not filed by
the Respondent, therefore, BWs could not have been issued against the
Petitioner.
6. It is evident from the order dated 18.07.2011 passed in all the three
Complaint cases that the Petitioner was directed to be admitted to bail on
furnishing a Personal Bond in the sum of `10,000/- with one surety in the
like amount. The notice under Section 251 Cr.P.C. was framed and the
matter was listed for defence evidence in terms of the judgment of this
Court in Rajesh Agarwal v. State & Anr. (2010) 171 DLT 51. The
Petitioner was further given an opportunity to file an application under
Section 145 (2) of the Negotiable Instruments Act, 1881 (the Act) if he
wanted to cross-examine the complaint on the next date of hearing. The
order dated 18.07.2011 clearly reveals that the Petitioner never informed
the Trial Court that (i) he had not received the process in the case; (ii) that
he had appeared of his own on receiving information of filing of the
complaint; or (iii) that the copy of the complaint and the documents may
be supplied to him.
7. Thus, the Petitioner's averments in the instant Petitions that a request was
made to the learned 'MM' for supply of the copy of the complaint and the
documents is misconceived and is against the record.
8. It is true that an application dated 17.09.2011 was moved by the
Petitioner for supply of the copy of the complaint and supporting
documents and to recall framing of the notice under Section 251 Cr.P.C.
Obviously, the learned 'MM' had no power to review framing of the
notice in view of the judgment of the Supreme Court in Adalat Prasad v.
Rooplal Jindal & Ors. (2004) 7 SCC 338, thus he dismissed the
Application vide order dated 19.09.2011.
9. A perusal of the order reveals that the learned 'MM' again granted an
opportunity to the Petitioner to move an application under Section 145(2)
of the Act to disclose his defence so that his (Petitioner's) prayer for
recalling the Complainant for the purpose of cross-examination may be
considered.
10. In my view, even on the basis of Adalat Prasad nothing prevented the
learned 'MM' to supply the copy of the complaint and list of witnesses to
the Petitioner on checking the record whether the same has been received
by him or not. Permitting supply of the copy of the complaint etc. will not
amount to review of any order passed by the learned 'MM'. The learned
'MM' proceeded to decline the Petitioner's request simply on the ground
that no such plea was taken by the Petitioner at the time the notice under
Section 251 Cr.P.C. was framed against him. Since, at least in two cases
(Crl.MC.3410/2011 and Crl.MC.3455/2011) it is proved on record that
the process was not served upon the Petitioner, he was entitled to be
supplied with the copy of the complaint, list of witnesses and the
documents relied upon by the Respondent. Since it is a disputed question
whether the service was in fact effected in CC No.2270/2011, i.e.
Crl.M.C.3481/2011, I would direct for supply of the copies of documents
to the Petitioner in this case as well.
11. Since the question of non receipt of the Complaint and list of witnesses
was not raised at the time of framing of notice under Section 251 Cr.P.C.,
I am not inclined to set aside the order dated 18.07.2011. The Petitioner
is given another opportunity to make a request to the learned 'MM'
within four weeks to cross examine the complainant, if not already made,
which the learned 'MM' shall be entitled to decide on merits.
12. The Petitions are disposed of in above terms.
13. Pending Applications also stands disposed of.
(G.P. MITTAL)
JUDGE
MARCH 05, 2013
vk
