Delhi High Court
M/S Mayawala Gases Pvt. Ltd. vs M/S Bhawani Pictures on 25 May, 2017
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th May, 2017
+ CRL.A. 959/2006
M/S MAYAWALA GASES PVT. LTD. ..... Appellant
Through: Ms. Mala Goel, Advocate with
Mr. Arun Kumar, Advocate
versus
M/S BHAWANI PICTURES ..... Respondent
Through: Ms. Shipra Choudhry,
Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The appellant had instituted a criminal complaint alleging
offence under Section 138 of the Negotiable Instruments Act, 1881
(N.I.Act) having been committed by the respondent, such complaint
having been presented on 21.12.2000 before the then Chief
Metropolitan Magistrate, Delhi. The said complaint case resulted in
preliminary inquiry under Sections 200 and 202 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) by the court of Metropolitan
Magistrate resulting in issuance of process under Section 204 Cr.P.C.
by order dated 18.08.2001. Subsequently, the case stood transferred to
the court of Additional Sessions Judge pursuant to the certain
directions then issued by this court transferring the jurisdiction over
the prosecution of complaint cases under Section 138 of the N.I. Act
from the courts of Metropolitan Magistrate to the Sessions courts.
2. While the matter was thus pending on the file of the court of
Additional Sessions Judge, the respondent appeared. The proceedings
recorded in its wake indicate that, by order dated 17.02.2003, the court
of Sessions directed defence evidence to be adduced, this without
notice of accusation under Section 251 Cr.P.C., or in terms of
summary procedure which could have been applied, having been
issued or served on the respondent. Some evidence in defence was
adduced. The respondent moved an application seeking recall of the
summoning order. The said application which came up for
consideration was allowed by the impugned order dated 09.09.2003
resulting in the complaint being dismissed, the net result being that the
respondent stood acquitted.
3. The criminal appeal at hand was presented, with leave of this
court, challenging the above conclusion of the complaint case.
4. The respondent on being noticed has appeared to resist the
appeal. Reliance is placed on S.K. Bhalla vs. State & Ors., 180 (2011)
DLT 219, in particular observations (in para 15) to the effect that it is
the bounden duty of the trial court to carefully go through the
allegations made in the charge sheet/complaint and consider the
evidence to come to a conclusion whether or not commission of the
offence is disclosed and if the answer is in the negative, the court is
bound to discharge the accused. Noticeably, the said observations
were recorded against the backdrop of criminal complaint alleging
offence punishable under Section 509/199 of the Indian Penal Code,
1860 (IPC). In a prosecution under Section 138 of the N.I. Act, the
presumption in Section 139 also has to be borne in mind.
5. Though the impugned order does not say so explicitly, it is clear
that the learned court of sessions assumed that it had the power and
jurisdiction to revisit and review the summoning order in terms of the
decision of the Supreme Court reported as K.M. Mathew vs. State of
Kerala & Anr., (1992) 1 SCC 217. But then, by a subsequent decision
of a bench of three Hon'ble Judges of the Supreme Court, reported as
Adalat Prasad vs. Rooplal Jindal & Ors., (2004) 7 SCC 338, the
judgment of K.M. Mathew (supra) was overruled. It was held that after
issuance of process on the criminal complaint, there was no
jurisdiction or power available in the court of Metropolitan Magistrate
to review the said order, the only remedy available being by a petition
under Section 482 Cr.P.C. before the High Court. This was reiterated
by another bench of three Hon'ble Judges of the Supreme Court in
Subramanium Sethuraman vs. State of Maharashtra & Anr., (2004) 13
SCC 324. In identical fact-situation, by similar order, in judgment
reported as Asia Metal Corporation (HUF) vs. State & Anr., 130
(2006) DLT 545, a learned Single Judge of this court set aside the
order passed to this effect resulting in acquittal of the accused in such
proceedings.
6. Aside from the fact that the court of sessions passing the
impugned order did not have any jurisdiction of review of the
summoning order, it is also noticed that the procedure adopted was
against the settled principles. Even if the trial court had invoked its
jurisdiction to apply the summary procedure, the trial court could not
have commenced so as to reach the stage of defence evidence without
first the notice of accusation being served on the person summoned as
an accused under Section 251 Cr.P.C. if the procedure adopted was
that of summons trial, or under Section 263 Cr.P.C., if the summary
procedure had been applied. Further, before the case could be taken to
the stage of defence evidence, the complainant was entitled, in law, to
lead evidence in support of its case, only whereafter the turn of the
person accused to adduce evidence would come, that too after his
statement under Section 313 Cr.P.C. or under Section 281 Cr.P.C. had
been recorded wherein he would have had the liberty of explaining the
incriminating facts and circumstances that would have come on record
through the complainant's evidence.
7. No such procedure as above was followed. Therefore, the
impugned judgment cannot be upheld. It is set aside. In the result, the
proceedings arising out of the complaint case referred to above stand
revived on the file of the trial court, to be taken up further from the
stage where the case was when the impugned order was passed.
8. On the date the impugned order was passed, the National
Capital Territory of Delhi was treated as one metropolitan area or
sessions division. It has since been divided into eleven metropolitan
areas or sessions divisions. Going by the averments in the complaint,
the jurisdiction would now vest in the court of Chief Metropolitan
Magistrate, Central District at Tis Hazari Courts, Delhi.
9. The trial court record with the copy of this order shall be sent to
the court of Chief Metropolitan Magistrate, Central District at Tis
Hazari Court, where the parties would appear on 12th July, 2017.
10. The Chief Metropolitan Magistrate, in his discretion may keep
the matter on his own board or allocate to any other Magistrate under
his control.
11. Needless to add, given the old pendency of this matter, all
endeavour shall be made to expedite the proceedings to take the case
to early adjudication.
R.K.GAUBA, J.
MAY 25, 2017
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