Delhi High Court
Mukesh Aggarwal vs The State (Nct Of Delhi) & Ors. on 28 January, 2019
SHAKUN ANAND
04.02.2019 11:30
$~10
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th January, 2019
+ CRL. M.C. 818/2016
MUKESH AGGARWAL ..... Petitioner
Through: Mr. Rajiv Ranjan Prasad proxy
for Mr. R.S. Mann, Adv.
versus
THE STATE (NCT OF DELHI) & ORS. .... Respondents
Through: Mr. Sanjeev Sabharwal, APP
for the State.
None for R-2 to 4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner had instituted a criminal complaint case (CC no.
1049/2013) against the second to fourth respondents herein alleging
offence under Section 138 of Negotiable Instruments Act, 1881 having
been committed by them on account of non-payment inspite of notice
of demand sent in the wake of dishonor of cheque bearing no. 539333
dated 18.09.2013 drawn on Axis Bank Ltd. in the sum of Rs.
54,32,500/- statedly issued by them in his favour against the account
of the second respondent (company accused), the other respondents
statedly being directors incharge of and responsible for conduct of its
business. The Metropolitan Magistrate, after preliminary inquiry,
issued summons to second to fourth respondents by order dated
03.12.2014.
2. The respondents, who were thus summoned as accused,
approached the court of Sessions invoking revisional jurisdiction by
filing Crl. Rev. 15-17/2015 which were disposed of by order dated
05.08.2015, the effect whereof is that the proceedings in the criminal
complaint case of the petitioner have been stayed till final decision in
the case arising out of FIR no. 53/2013 of police station Special Cell
wherein the petitioner is stated to be an accused, the said FIR having
been registered at the instance of the respondents.
3. It appears that the case of the petitioner has been that on
account of friendly relationship he had advanced a loan of an amount
to the second respondent (company accused), part of which (Rs.
58,27,500) having been repaid, the balance liability (Rs. 54,32,500)
was sought to be discharged by the said respondents handing over the
afore-mentioned cheque it having been issued as a post-dated cheque.
The cheque, upon presentation, however, was returned unpaid with the
remarks "payment stopped by drawer". On the other hand, the
contention of the respondents before the revisional court was that
complaint has been filed on false facts, the cheque having been
actually stolen and misappropriated by the petitioner, this being the
subject matter of the allegations against him in the criminal case
arising out of FIR no. 53/2013, the report of forensic science
laboratory (FSL) gathered during investigation of the said case having
indicated that the particulars of the cheque were not filled by the
respondents.
4. The contention of the respondents before the revisional court
was that magisterial court has ignored the fact that the petitioner was
looking after the administrative functions of the company accused and
was custodian of the cheque books and at times he would get blank
cheque signed from the third respondent. The petitioner, on the other
hand, contends that the FIR has been got registered under directions of
the Additional Chief Metropolitan Magistrate on basis of misleading
facts.
5. The revisional court considered it proper to stay the proceedings
in the criminal complaint case under Section 138 NI Act against the
respondents on the ground that the same would "unnecessarily
prejudice" the trial court while the criminal case arising out of FIR no.
53/2013 is pending.
6. Feeling aggrieved by the said directions of stay, the petitioner
approached this Court by this petition under Section 482 Cr.P.C.
invoking the inherent power and jurisdiction. The second to fourth
respondents though served and having entered appearance, have not
filed any reply. They have failed to appear at the time of hearing on
the matter, the matter having been passed over earlier in the day,
similar situation continuing to prevail till late hours in post lunch
session.
7. This Court finds the view taken by the revsional court to be
wholly unfair and unjust. Though questions would arise in the
criminal case under Section 138 NI Act as to whether cheque in
question had come in the hands of the petitioner legitimately or not,
the contentions of the respondents are a matter of defence which will
have to be raised by them, the burden of proof of the requisite facts in
such regard being placed on them. There is no reason why the case
arising out of above-mentioned FIR should have a primacy or priority
over the case of the petitioner against the opposite party.
8. The petition is, thus, allowed. The impugned order staying the
proceedings in the case under Section 138 NI Act is hereby vacated.
However, nothing said in this order shall be treated as final expression
of opinion on merits.
R.K.GAUBA, J.
JANUARY 28, 2019
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