Delhi High Court
Sanjay Shandilya & Anr. vs The State (Govt. Of Nct Of Delhi) ... on 12 December, 2022
Neutral Citation Number:2022/DHC/005538
Neutral Citation Number:2022/DHC/005538
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on :08.12.2022
Order pronounced on : 12.12.2022
+ CRL.M.C. 2547/2022 & CRL.M.A. 10630/2022
1. Sanjay Shandilya
s/o. Sh. Mishri Lal Shandilya
r/o. H.No. J-68, Ground Floor,
Ashok Vihar, Phase-I, Delhi
M.No. 9212150206
Email ID: [email protected] yahoo.com
2. Akash Raj Gupta
S/o. Sh. Raj Kumar Gupta
R/o. 95/35, Kath Mandi,
Naya Parrow, Rohtak, Haryana.
M.No. 9873077192 ..... Petitioners
Through: Mr. Sanjay Rathi and Mr. Deepak
Khatri, Advs.
versus
1. The State
(Govt. of NCT of Delhi)
2. Kawaljeet Singh Duggal
s/o. Sh. Raghubir Singh
R/o. J-03, Dhawandeep Building,
Jantar-Mantar Road, New Delhi-110001
3. M/s. C.P. Systems Pvt. Ltd. (Proforma respondent)
501, Krishna Apra Building
Netaji Subhash Palace, Pitampura,
New Delhi-110034
M.No. 9212150206
Email ID:[email protected] ..... Respondents
Through: Ms.Richa Dhawan,Addl.PP for State
CORAM:
HON'BLE MS. JUSTICE POONAM A. BAMBA
POONAM A. BAMBA, J.:
CRL.M.C. 2547/2022 Page 1 of 9
Signature Not Verified
Digitally Signed CRL.M.C. 2547/2022 Page 1 of 9
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
1.0 Vide this petition filed u/S. 482 of Code of Criminal Procedure,
1973 („Cr.PC‟ in short), the petitioners have sought :-
(i) setting aside of order dated 29.04.2022 („impugned order‟
in short), passed by Ld. MM (N.I. Act)-01, SW/DWK/ND in
C.C. No. 44350/2019 („complaint‟ in short), titled as
Kawaljeet Singh Duggal vs. C.P. Systems Pvt. Ltd. & Ors.,
whereby the petitioner‟s application under section 322 Cr.PC
was dismissed; and
(ii) dropping of the proceedings against the petitioners under
section 138 of Negotiable Instruments Act („N.I.Act‟ in
short) in the aforesaid complaint.
2.0 Briefly stating, the facts relevant for disposal of this petition are
that :
(i) Kawaljeet Singh Duggal/ respondent no. 2 herein through his
Special Power of Attorney („SPA‟ in short)/Authorized
Representative Sh. Sanjeev Malik Chand filed the complaint
under Section 138 N.I. Act against the respondent no. 3 i.e. M/s.
C.P. Systems Pvt. Ltd. and its directors, namely, Sanjay
Shandilya (petitioner no. 1 herein) and Vikas Ahuja, Akash Rai
Gupta (petitioner no. 2 herein) and Suchan Jamkhandi Sunil;
(ii) vide order of Ld. MM dated 11.12.2019, the accused persons
including the petitioners herein were summoned for 13.02.2020;
(iii) the accused no. 2 & 4/the petitioners herein filed an application
u/s. 322 Cr.PC for review of summoning order dated
Signature Not Verified
Digitally Signed CRL.M.C. 2547/2022 Page 2 of 9
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
11.12.2019 and for dropping of the proceedings u/s. 138 N.I.
Act against them;
(iv) the said application was dismissed by the Ld. Magistrate vide
order dated 29.04.2022/ the impugned order, observing that the
Ld. MM does have criminal and territorial jurisdiction to
proceed in the matter, rejecting the petitioner‟s plea of lack of
jurisdiction against them.
3.0 The petitioners have challenged the impugned order dated
29.04.2022, inter alia, on the grounds that:
(i) the Special Power of Attorney holder Sh. Sanjeev Malik Chand
had no authority to file the complaint u/s. 138 N.I. Act against
the petitioners as the Special Power of Attorney („SPA‟ in
short), on the basis of which he filed the complaint on behalf of
Kawaljeet Singh Duggal, did not empower him to implead the
petitioners herein;
(ii) the Ld. Magistrate failed to appreciate that as the said Special
Power of Attorney only mentioned that Sh. Sanjeev Malik
Chand could initiate, file, institute and do other things "in the
matter of Kawaljeet Singh Duggal Vs. C.P. Systems Pvt. Ltd.",
it did not authorize the SPA holder to implead the petitioners
herein as accused in the aforesaid complaint; and no such
proceedings could have been continued by him before the Ld.
Trial Court;
(iii) Ld. Magistrate failed to appreciate that when the SPA holder
did not have authority to implead the petitioners/accused
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Digitally Signed CRL.M.C. 2547/2022 Page 3 of 9
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
persons and to continue such proceedings, the issuance of
summons by the Ld. MM was without jurisdiction, in view of
the law as laid down in TimbloIrmaos Ltd. Margo vs. Jorge
Anibal Matos Sequeria and Ors, 1977 AIR 734.
3.1 During arguments, with respect to scope of power of attorney, the
Ld. Counsel for the petitioners also referred to the judgment in Jimmy
Jahangir Madan vs. Bolly Cariyappa Hindley (Dead) by LRs, (2004) 12
SCC 509.
4.0 On the other hand, Ld. counsel for the respondent no. 2 sought
dismissal of this petition with heavy costs pleading that it lacks merits
and has been filed only to harass the complainant and delay the
proceedings before the Ld. Trial Court. It is submitted that the application
under Section 322 Cr.PC filed by the petitioner was not maintainable and
was rightly dismissed by the Ld. MM. Even the present petition is not
maintainable.
4.1 Ld. counsel for the respondent no. 2 also submitted that the
respondent no. 3 - M/s. C.P. Systems Pvt. Ltd. is a company, a juristic
person and in terms of Section 141 N.I. Act, every person, who at the
time the offence was committed, was in charge of/responsible to the
company for conduct of its business shall be deemed to be guilty of the
offence and is liable to be prosecuted u/S. 138 N.I. Act. Thus, the SPA
holder was well within his rights to proceed against M/s. C.P. Systems
Pvt. Ltd. and its directors/the petitioners herein, though were not
specifically named in the SPA. Thus, the Ld. MM has rightly proceeded
in the matter and summoned the petitioner.
Signature Not Verified
Digitally Signed CRL.M.C. 2547/2022 Page 4 of 9
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
4.2 Ld. counsel also submitted that even otherwise, the petitioners have
also filed a petition for quashing of summoning order/proceedings u/s.
138 N.I. Act on 27.10.2021 on same grounds, which is pending before the
co-ordinate bench of this court. This fact is not disputed by Ld. counsel
for the petitioners.
4.3 Ld. counsel for the respondent no. 2 argued that the judgment in
Jimmy Jahangir Madan's case (supra) as relied upon by the petitioners,
is not applicable in the present case, facts being very different.
5.0 I have duly considered the submissions made by both the sides.
6.0 It may be mentioned that the Ld. MM took cognizance and
summoned the petitioners herein in the respondent no. 2‟s complaint u/S.
138 N.I.Act, vide order dated 11.12.2019. Pursuant thereto, the
petitioners filed an application u/s. 322 Cr.PC for revisiting of the said
order pleading lack of jurisdiction with the Ld. MM. The petitioners‟
application u/S. 322 Cr.PC was dismissed by the Ld. MM vide impugned
order dated 29.04.2022, under challenge in the present petition.
6.1 Relevant portion of the impugned order reads as under :
"29.04.2022
.........
......
Put up for notice framing against No. 2 and 4 on 31.05.2022
.....
Vide this Order, I shall dispose off the application moved by
accused no.2 and 4 under Section 322 Cr.P.C. to review the
Order dated 11.12.2019.
Signature Not Verified
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
Counsel for accused argued that as Ex.CW1/A, SPA holder
Sanjeev Mallick has been duly authorized to proceed against
M/s. C.P. System Pvt. Ltd. only and not against any other
person. ....... He further argued that in view of directions laid
down by Hon'ble Supreme Court of India in case of
Expeditious Trial of case under Section 138 of N.I. Act, 1881
in Suo moto writ petition (Crl.) No. 2/2020 "The Trial Court
has power to revisit the order of issue of process it if brought
to the Court's notice that it lacks jurisdiction to try the
complaint".
.............
This court is of the view that there is no question of lack of
jurisdiction. The court of undersigned does have Criminal
and Territorial jurisdiction to proceed in the present matter.
Therefore, the argument raised by accused's counsel that the
present case cannot be proceeded against accused no. 2 and 4
on ground of lack of jurisdiction is not justifiable.
In view of the above, the present application stands dismissed."
7.0 Before dealing with the petitioners‟ contentions, reference may be
made to Section 322 Cr.PC, which reads as under :
"322. Procedure in cases which Magistrate cannot dispose
of.
(1) If, in the course of any inquiry into an offence or a trial
before a Magistrate in any district, the evidence appears to
him to Warrant a presumption-
(a) that he has no jurisdiction to try the case or commit it for
trial, or
(b) that the case is one which should be tried or committed for
trial by some other Magistrate in the district, or
(c) that the case should be tried by the Chief Judicial
Magistrate, he shall stay the proceedings and submit the
case, with a brief report explaining its nature, to the Chief
Signature Not Verified
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
Judicial Magistrate or to such other Magistrate, having
jurisdiction, as the Chief Judicial Magistrate directs.
(2) The Magistrate to whom the case is submitted may, if so
em- powered, either try the case himself, or refer it to any
Magistrate subordinate to him having jurisdiction, or commit
the accused for trial."
7.1 From the plain reading of sub clause (a) of sub section (1) of
Section 322 Cr.PC, it is evident that a magistrate can not take cognizance
in the matter, if he lacks jurisdiction. For bringing a case within the ambit
of section 322 Cr.PC, the petitioner has to demonstrate that the Ld.
Magistrate lacked jurisdiction or had defective jurisdiction, legal or
territorial. It may be mentioned that vide present petition and even during
arguments, Ld. counsel did not challenge the territorial jurisdiction or the
legal jurisdiction of the Ld. Magistrate per se. The main contention of the
petitioners is that as the SPA authorized the attorney Sanjeev Malik
Chand to proceed only against the respondent no. 3 i.e. C.P. System Pvt.
Ltd. and not the petitioners; thus, the Ld. Magistrate could not have
proceeded against them/summoned them in the complaint u/S. 138 N.I.
Act as it was filed without authority and conferred no jurisdiction on the
Ld. Magistrate. Same is hardly a jurisdictional issue as contemplated u/S.
322 (1)(a) Cr.PC.
7.2 Be that as it may. Even if it is considered for a while, perusal of the
Special Power of Attorney shows that the respondent no. 2 Sh.
Kanwaljeet Singh Duggal appointed Sh. Sanjeev Malik Chand as his
lawful attorney to initiate, file, institute and do other such acts and to
proceed/file case against the C.P. Systems Pvt. Ltd. before the District
Courts, Delhi. Suffice it to state that the company C.P. Systems Pvt. Ltd.
being a juristic person had to be impleaded through its directors/persons
in charge responsible to the company for the conduct of its business. In
Signature Not Verified
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
this respect, I find force in the respondent no. 2‟s arguments that Section
141 N. I. Act embodies the said principle and specifies that when offence
u/S. 138 N.I.Act is committed by the company, the persons in charge and
responsible to the company for the conduct of its business, shall be
deemed to be guilty.
7.3 Thus, the respondent no. 2/SPA holder was well within his rights to
implead/prosecute the petitioners/ directors of M/s. C.P. Systems Pvt.
Ltd., while filing the complaint u/S. 138 N.I. Act against the respondent
no. 3 M/s. C.P. Systems Pvt. Ltd. Even if the argument of Ld. counsel for
the petitioners is accepted for a moment, act of the SPA can be ratified by
the complainant, even later. In view of these facts, the complaint can not
be said to have been filed without authority.
7.4 The judgment in Jimmy Jahangir Madan's case (supra), as relied
upon by the petitioners, is not of much assistance to them, facts being
distinguishable. In that case, during trial, the complainant died leaving
behind her son and daughter, who were staying in USA. The
complainant‟s children executed a General Power of Attorney (GPA)
permitting the attorney to continue the prosecution u/S. 138 N.I. Act. The
GPA holder filed an application under Section 302 Cr.PC for allowing
them to continue with the prosecution u/s. 138 N.I. Act. The Apex Court
noted that such an application has to be filed by a person/legal heirs, who
are entitled to continue the prosecution. They may in turn be represented
by an attorney, in case permission for such representation is sought by
them from the court and is granted.
7.5 Even the judgment in TimbloIrmaos Ltd. Margo's case (supra)
which deals with the scope of power of attorney, is hardly of any
Signature Not Verified
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
Neutral Citation Number:2022/DHC/005538
assistance to the petitioners, the facts being distinguishable.
8.0 In view of the above, the impugned order does not call for any
interference.
9.0 Petition is accordingly dismissed.
10.0 Pending applications, if any, stand closed.
POONAM A. BAMBA, J
DECEMBER 12, 2022/manju
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Signature Not Verified
By:GEETA JOSHI
Signing Date:21.12.2022
12:16:20
