Delhi High Court
Sanjay Gambhir vs State And Another on 11 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 11th May, 2017
+ CRL.M.C. 376/2016 & Crl.M.As. 1600-1601/2016.
SANJAY GAMBHIR ..... Petitioner
Represented by: Mr. Shiv Chopra, Advocate.
versus
STATE AND ANOTHER ..... Respondents
Represented by: Ms. Rajni Gupta, APP for the
State.
Mr. Sunil Narula, Adv. for
respondent No.2.
+ CRL.M.C. 76/2017 & Crl.M.A. 347/2017.
TARUN KUMAR ..... Petitioner
Represented by: Mr. Sidharth Agarwal and Mr.
Yashpreet Singh, Advocates.
versus
STATE AND ANOTHER ..... Respondents
Represented by: Mr. Ashok Kumar Garg, APP
for the State.
Mr. Sunil Narula, Adv. for
respondent No.2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. A complaint was filed by respondent No.2 M/s Shree Ram Enterprises
a partnership firm through its partner Satyapriya Lakhotia against M/s
Rangoli Projects Pvt. Ltd. through its Director Sanjay Gambhir (in short
Crl.M.Cs. 376/2016 & 76/2017
'M/s Rangoli Projects') under Section 138 read with Sections 141 and 142 of
the Negotiable Instruments Act, 1881. In the said complaint, neither Sanjay
Gambhir in his personal capacity nor Tarun Kumar were impleaded as
accused. This Court need not go into the allegations in the complaint as the
same are not material for the purpose of decision of the present petitions.
2. On the said complaint, learned Metropolitan Magistrate vide order
dated 9th April, 2012 took cognizance and issued summons against the
accused i.e. M/s Rangoli Projects. However, on a process fee being filed by
respondent No.2 for issuance of summons both against the company and
Sanjay Gambhir, summons were issued against both of them. Sanjay
Gambhir appeared before the learned Metropolitan Magistrate on 1st June,
2013 and was admitted to bail. While framing notice under Section 251
Cr.P.C. the learned Metropolitan Magistrate on 21st July, 2014 noted the fact
that Sanjay Gambhir was never made an accused in the complaint nor
summoned however inadvertently summons were issued to him and thus
passed the following order-
"CC No.2012/14
Shree Ram Enterprises Vs. Rangoli Projects Pvt. Ltd. & Anr.
21.07.2014
Present: Ld. Counsel for the complainant.
Ld. Counsel for the accused.
In the present matter memo of parties shows that
complainant has filed the complaint against Rangoli Projects Pvt
Ltd. through its director Sh. Sanjay Gambhir meaning thereby
only the company was arrayed as accused which was accordingly
summoned in the case to face the trial vide order dated 09.04.2012
by my Ld. Predecessor. The company accordingly has duly
appointed an authorized representative Mr. Tarun Kumar to
Crl.M.Cs. 376/2016 & 76/2017
pursue the present case vide resolution dated 10.05.2014 which is
on record.
However, it appears that inadvertently Sanjay Gambhir
has also been putting his appearance in the present matter but
infact he is not a party to the present complaint.
As per Section 305 of Cr.P.C. when a corporation is an
accused person, it may appoint representative for the purpose of
enquiry or trial. Accordingly, accused company has appointed Sh.
Tarun Kumar to represent in the present trial. Although, the
present case has been filed against the company whose director is
Sanjay Gambhir but as per Section 305 of Cr.P.C, it is choice of
the complainant to appoint a representative and not that of the
accused. Hence, accused Sanjay Gambhir's presence is not
required in the present case. In fact, he was never summoned in
the present case. Needless to mention, proceedings against him
stands dropped as his appearance was due to a bonafide mistake.
Be listed for cross-examination of the complainant after moving
an application U/s 145(2) by the accused for 20.09.2014."
3. As noted in the order, Tarun Kumar, the petitioner in Crl.M.C.
76/2017 was appointed as authorized representative of the company M/s
Rangoli Projects and thus represented the company and was not summoned
as an accused in his own capacity.
4. Aggrieved by the order dated 21st July, 2014, respondent No.2 filed a
revision petition before the learned Additional Sessions Judge which was
withdrawn with liberty to file an application before the learned Metropolitan
Magistrate for issuance of the summons to the Director of the accused
company. Thereafter respondent No.2 filed an application dated 23rd
December, 2014 before the learned Metropolitan Magistrate seeking to make
the two petitioners as accused in the complaint armed with the order dated
15th November, 2014 passed by the learned Additional Sessions Judge.
Crl.M.Cs. 376/2016 & 76/2017
5. Contention of learned counsels for the petitioners is that there is no
concept of amendment of the complaint and by filing an application, the
complainant cannot amend the complaint and seek issuance of summons to
additional accused. Admittedly, in the complaint, Sanjay Gambhir in his
personal capacity was not impleaded as an accused and further Tarun Kumar
only appeared as the authorized representative of the company M/s Rangoli
Projects vide resolution dated 10th May, 2014 and was also sought to be
summoned by filing an application by respondent No.2 pursuant to the order
of the learned Additional Sessions Judge dated 15 th November, 2014.
Further by permitting the two applications and granting liberty to respondent
No.2, learned Metropolitan Magistrate vide order dated 11th December, 2015
sought to recall its order dated 9th April,2012 wherein summons were issued
only against the company M/s Rangoli Projects and 21st July, 2014 clarifying
that Sanjay Gambhir was never summoned as an accused which is
impermissible in law. Learned counsels for the petitioners further submit
that learned Additional Sessions Judge vide the impugned order dated 15 th
November, 2014 permitted respondent No.2 to file applications before the
learned Metropolitan Magistrate adversely affecting the rights of the
petitioners without issuing them notice or hearing them.
6. Learned counsel for respondent No.2 on the other hand contends that
inadvertently respondent no.2 did not implead Sanjay Gambhir as an accused
however learned Trial Court rightly summoned him as an accused and
directed to appear in person. Vide order dated 21 st July, 2014, learned Trial
Court could not have recalled its previous order and dropped the proceedings
qua Sanjay Gambhir. As held by the Supreme Court in the decision reported
Crl.M.Cs. 376/2016 & 76/2017
as (2004) 7 SCC 338 Adalat Prasad Vs. Rooplal Jindal a Magistrate cannot
review its own order on an application filed by the summoned accused.
7. Thus, there is no dispute between the parties and there can be none
that the Magistrate has no power to review or recall its order. The issue is
whether on facts the learned Metropolitan Magistrate recalled its earlier
order. As noted above, vide order dated 9th April, 2012 summons were
issued only to the company M/s Rangoli Projects however in the process fee
form filed by respondent No.2 since name of Sanjay Gambhir was also
mentioned, summons were issued to him as well. This was not a judicial
order but purely an administrative act. Vide order dated 21 st July, 2014
while noting this error and issuing the clarification, learned Metropolitan
Magistrate did not recall its earlier order of issuance of summons to the
single accused i.e. the company M/s Rangoli Projects but rectified the
administrative mistake. Hence it cannot be held that there was any error in
the order dated 21st July, 2014 passed by the learned Metropolitan Magistrate
clarifying that Sanjay Gambhir was never summoned as an accused, his
appearance was a bonafide mistake and the proceedings qua him are
dropped.
8. The second limb of argument of learned counsel for the petitioners
that the learned Additional Sessions Judge could not have granted liberty to
respondent No.2 to file an application and add additional accused thereby
permitting amendment of the accused in the complaint is required to be
allowed on two counts.
9. Firstly, the order passed by learned Additional Sessions Judge was in
non-compliance of the decision of the Supreme Court reported as (2012) 10
SCC 517 Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai
Crl.M.Cs. 376/2016 & 76/2017
Mohanbhai Patel & Ors. which categorically held that while exercising
revisional powers the Sessions Court or the High Court under Sections 399
or 401 Cr.P.C. cannot pass adverse to the accused without issuing notice and
providing him an opportunity of being heard.
10. Supreme Court in the decision reported as (2015) 9 SCC 609 S.R.
Sukumar Vs. S. Sunaad Raghuram dealing with the issue whether
amendment in criminal complaint is permissible held that there was no
specific provision in the Cr.P.C. to amend the complaint. However, if the
amendments made relate to simple infirmity which is curable by means of a
formal amendment which causes no prejudice to the other side, the Court
may permit such an amendment to be made but if the amendment sought to
be made do not relate either to a curable infirmity or the same cannot be
corrected by a formal amendment or if there is likelihood of prejudice to the
other side, amendment cannot be allowed.
11. This Court in the decision reported as 2012(130)DRJ 656 Yahoo!
India Pvt. Ltd. Vs. State & Another noting the various provisions of Cr.P.C.
held that there was no provision in the Cr.P.C. which permits amendment of
the complaint or produce documents after issuance of the summons.
12. Thus, amending a complaint by filing an application to add an accused
not initially impleaded is not a curable defect and would cause serious
prejudice to the accused sought to be summoned and hence amendment to
such an extent is impermissible in law. Therefore, the impugned order
passed by learned Additional Sessions Judge is liable to be set aside on the
count as well.
13. Consequently, the impugned order dated 15th November, 2014 passed
by the learned Additional Sessions Judge permitting respondentNo.2 to
Crl.M.Cs. 376/2016 & 76/2017
withdraw the revision petition with liberty to file appropriate application
before the Metropolitan Magistrate and the consequential order dated 1 st
December, 2015 passed by the learned Metropolitan Magistrate to the extent
it permits respondent No.2 to take steps within seven days to file an
application making additional persons as accused are set aside.
14. Petitions and applications are disposed of.
(MUKTA GUPTA)
JUDGE
MAY 11, 2017
'v mittal'
Crl.M.Cs. 376/2016 & 76/2017
