Delhi High Court
Rajeev Ranjan Sinha vs Sushil Kumar Saxena & Ors. on 26 May, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 26th May, 2022
+ CRL.M.C. 2073/2022, CRL.M.A. 8771/2022
RAJEEV RANJAN SINHA ..... Petitioner
Through Mr. Siddharth Dutta and Ms.Gunjan
Malhotra, Advocates
versus
SUSHIL KUMAR SAXENA & ORS. ..... Respondents
Through Ms.Manjeet Arya, APP for
respondent No.3/State
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
1. This petition has been filed under Section 482 of the Code of
Criminal Procedure, 1973 (for short, "Cr.P.C.") seeking the quashing of
the summoning order dated 18th November, 2021, passed by the learned
Metropolitan Magistrate, Patiala House Courts, New Delhi (for short,
"learned Trial Court") in Complaint Case No.9486/2018 filed by the
respondents No.1 and 2 against the petitioner under Section 138 read with
Section 142 of the Negotiable Instruments Act, 1881 (for short, the "N.I.
Act").
2. It may be noted, at this juncture, that the order impugned is not the
summoning order. Rather, it is the order dismissing the application of the
petitioner seeking discharge, which is dated 18th November, 2021 and has
been placed on the record as Annexure P-15 at pages 77-78 of the E-file.
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:26.05.2022
17:55:59
The summoning order is dated 21st July, 2012 and has been placed on the
record as Annexure P-10.
3. The complaint was filed when the cheque dated 18 th May, 2012
issued by the petitioner for a sum of Rs.24 lakhs, drawn on Indian
Overseas Bank, Institutional Area, Secto-62, Noida, Uttar Pradesh, was
dishonoured. After the learned Trial Court had summoned the
accused/petitioner to face trial for the offence under Section 138 of the
N.I.Act, a petition under Section 482 Cr.P.C. was filed challenging the
summoning order, which was disposed of vide orders dated 8 th May, 2014
by a Co-ordinate Bench of this Court, permitting the petitioner to raise all
issues before the learned Trial Court before the Notice under Section 251
Cr.P.C. was served on the petitioner. It appears that thereafter, the
petitioner moved an application "for recall of the summoning
order/discharge of the accused", copy of which has been placed on the
record as Annexure P-14, raising several issues, which have been repeated
in the present petition.
4. In brief, the stand taken by the petitioner before the learned Trial
Court was that several cheques of the petitioner had gone missing/stolen,
which were the very cheques that the complainant was relying on and
misusing to file the instant complaint. In fact, the petitioner had also filed
an affidavit and a complaint before the Mumbai Police on 10th February,
2012 about his signed and unsigned cheques going missing. Once such a
report was registered, then no provisions of the N. I. Act could be attracted.
It was further submitted that the complainant and the accused were co-
brothers as they married two sisters and the petitioner had tendered his
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:26.05.2022
17:55:59
resignation on 27th January, 2012, whereafter the cheques signed by him
were not destroyed and were misused. He had also alerted the Bank not to
honour cheques in respect of Account No.171902000000189. Further, the
petitioner was not the Director of the company at the time of the
commission of the offence and was therefore not liable, and reliance has
been placed on the decision in DCM Financial Services Limited v. J N
Sareen (2008) 8 SCC 1.
5. Mr. Siddharth Dutta, learned counsel for the petitioner, has urged
these very grounds submitting that the entire case was mala fide and was
stage-managed against the petitioner and that in actual fact, the Director
was the daughter of the complainant, who ought to have been impleaded in
this case instead of the petitioner. Reliance has been placed on the decision
of the Supreme Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla
(2007) 4 SCC 70 and the judgment of a Co-ordinate Bench of this Court in
Shivom Minerals Limited v. State of Ors., 2019 SCC OnLine Del 9329 to
contend that since there were no specific averments against the petitioner
in the complaint, the petitioner ought to be discharged.
6. Since this is a case where, while disposing of a petition under
Section 482 Cr.P.C. against the summoning orders on the very same
grounds was disposed of by a co-ordinate Bench of this Court, permitting
him to raise these grounds before the learned Trial Court, all that this Court
can now consider is whether the conclusions drawn by the learned Trial
Court are in any way perverse, misplaced or based on no material.
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:26.05.2022
17:55:59
7. A perusal of the impugned order would reveal it to be a well-
reasoned one. The judgments relied upon and cited by the learned counsel
for the petitioner have been duly considered. In respect of the contention
that there was no averment in the complaint against the petitioner, the
learned Trial Court has clearly referred to para No.4 thereof, to note that
the „post-dated cheque‟ was issued towards consultancy fees and was duly
signed by the accused No.2, who is the petitioner before this Court. The
judgment in SMS pharmaceuticals (supra) itself has made the signatory of
the cheque responsible under Section 141(2) of the N.I. Act. There is no
error in the recording of the fact position, as is evident from the copy of the
complaint placed on the record as Annexure P-9, (at page 42, para No.4).
Nor is there an error in the application of the law. Therefore, the
conclusion that the petitioner herein cannot be discharged is sound.
8. With regard to the other argument that the petitioner has already
resigned or that the cheques were lost from his possession, these were
rightly held by the learned Trial Court to be the defence of the petitioner to
be established by him. Even before this Court, the petitioner relies only on
his resignation letter, which has been generally addressed to the Board of
Directors, with copies to another Director, the Registrar of Companies
(ROC) and the Chartered Accountant. But, there is nothing to show that
this was accepted by the Board of Directors and the necessary corrections
carried out in the records of the ROC. Of course, the petitioner would have
an opportunity to establish all these facts before the learned Trial Court.
9. As regards the plea that the cheque had been reported „lost‟, it is for
the petitioner to prove the same. He would also get an opportunity to cross-
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:26.05.2022
17:55:59
examine the Bank officials to establish that they had an obligation to have
refused honouring the cheque on the ground that the cheque has been
reported „lost‟ by the drawer, to get the benefit of the judgment in Raj
Kumar Khurana v. State of (NCT of Delhi) and Another (2009) 6 SCC
72. The learned Trial Court was therefore, right in holding that the loss of
the cheque can be ascertained only during the course of trial.
10. There being no error or perversity in the impugned order, no
interference is called for by this Court in exercise of its inherent powers
under Section 482 Cr.P.C. Accordingly, the petition is dismissed, along
with the pending application. It is made clear that nothing contained in this
judgment shall be construed as an expression on the merits of this case,
which the learned Trial Court shall determine as per law, after due trial.
11. The petition is accordingly disposed of.
12. The judgment be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
MAY 26, 2022
s
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:26.05.2022
17:55:59
