Hotline Electronics Ltd. & Anr. vs State & Anr.
2013 Latest Caselaw 5366 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                       DATE OF DECISION: 21st NOVEMBER, 2013

+    CRL.M.C. 129/2013 and Crl. M.A. 489/2013

     HOTLINE ELECTRONICS LTD. & ANR.            ..... Petitioners
                  Through: Mr. Mayank Bughani, Advocate.

                          versus
     STATE & ANR.                                         ..... Respondents
                          Through:   Mr. Pramod Saxena, APP for the State.
                                     Mr. Vinod Pant, Advocate for R-2.
     CORAM:
     HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. This petition under Section 482 of Code of Criminal Procedure,

1973 (for short 'Cr.P.C.') has been filed by the petitioner being

aggrieved by the impugned order dated 17th March, 2012 passed by

learned Metropolitan Magistrate (for short 'MM') (although, wrongly

mentioned as Additional Chief Metropolitan Magistrate in the petition),

Karkardooma Courts, Delhi in C.C. No. 4819/2009 titled as M/s PVR

Infotech v. Hotline Electronics Limited and Another as also order dated

1st November, 2012 passed by learned Additional Sessions Judge (for

short 'ASJ), Karkardooma Courts, Delhi whereby the revision petition

has been dismissed.

2. The relevant facts giving rise to the filing of the writ petition are

that on 15th October, 2009 petitioner No. 2 filed FIR No. 1337/2009

with Police Station Sector 20, Noida informing the police that one

Pradeep Aggarwal, partner of respondent No. 2 had stolen the cheques

of petitioner No.1/Company and by forging the signatures on the stolen

cheques presented the same for encashment. On 15th December, 2009

respondent No.2/complainant filed a complaint under Section 138 of

the Negotiable Instruments Act, 1881 (for short 'N.I. Act') alleging

that respondent No. 2 had supplied T.V. and electronic items to M/s

Samsung India Limited on the instructions of petitioner No.1/Company

during the period 2004 to 2006. The petitioner had given cheques to

the respondent for payment of the alleged dues which were

dishonoured on presentation. On 16th January, 2010 respondent

No.2/complainant tendered his pre-summoning evidence and closed his

evidence on 22nd November, 2010. An application was moved by

Inspector Ramji Lal Bharti, SIS GB Nagar requesting for release of

cheque filed along with the said complaint for investigation in FIR

No.1337/2009 which was allowed vide order dated 26th November,

2010. After the summoning order, petitioners appeared before Court

and were granted bail. An application was moved by the petitioners

under Section 91 Cr.P.C. for calling FSL report in FIR No. 1337/2009

on the ground that the cheque in question was forged. The application

was dis-allowed and notice was framed under Section 251 Cr.P.C. The

petitioner moved an application under Section 145(2) of the Act.

Complainant also filed an application under Section 143 of the Act

seeking trial of the complaint as a Summons case. While the

application of the complainant was allowed no order was passed on the

application under Section 145(2) filed by the petitioners. This order of

MM was challenged by filing a revision petition which was dismissed.

It was submitted that learned ASJ has grossly erred in rejecting the

revision petition by holding that the findings of the learned Trial Court

on the application of the accused under Section 91 of Cr.P.C. were well

founded. In fact, the petitioner had not challenged the said findings in

the revision petition. The impugned order deserves to be set aside

because application under Section 145(2) has been filed by the accused

and the learned MM was obligated to recall the complainant's witness

for examination. The case is required to be tried as a Summons Case.

Learned ASJ has failed to appreciate that learned MM has failed to

record any reason as to why the complaint deserves to be treated

otherwise than a Summary trial. As such, it was prayed that the

impugned orders be set aside.

3. The petition has been opposed by learned counsel for respondent

No. 2 on the ground that filing of the petition is nothing but an attempt

to delay the expeditious trial of the case. The impugned order does not

suffer from any infirmity which calls for interference.

4. The grievance of the petitioner is that the petitioner had filed an

application under Section 145(2) of the N.I. Act whereas complainant

had moved an application under Section 143 of the Act while the

learned MM allowed the application of the complainant, no order was

passed on his application under Section 145(2) of N.I. Act. Although,

it is true that while passing the impugned order dated 17th March, 2012

no specific order was passed by learned MM on the application under

Section 145(2) of the N.I. Act moved by the accused for examination

of the complainant's witnesses, however, once application of the

complainant was allowed and he was permitted to lead evidence as per

procedure in Summons trial case. Necessary corollary will be that after

examination-in-chief of the complainant's witness is recorded, the

accused will be entitled to cross-examine the witnesses. That being so,

despite the fact that no specific order was passed on the application

under Section 145(2) of N.I. Act, no prejudice has been caused to the

accused for the reason that he will get ample opportunity to cross-

examine the complainant and any witness examined by him. That

being so, the impugned order does not call for any interference.

5. The petition is accordingly dismissed.

SUNITA GUPTA (JUDGE) NOVEMBER 21, 2013 AK