IN THE COURT OF SHRI [ENTITY]: DISTRICT JUDGE & ADDITIONAL SESSIONS JUDGE I/C, SOUTH DISTRICT: SAKET NEW DELHI I. Criminal Revision Petition No.5/11 ID No.: 02406R0058482011 [ENTITY] (K.A. Kabra) S/o Late Sh. Bishamber Dayal Kabra R/o 11, Alkapuram, Ashok Colony, Hapur, District Ghaziabad Revisionist Versus (1) [ENTITY] S/o Late Jafar Raza Zaidi R/o A27/31, Johri Farms Lane No. 1, Jamia Nagar Okhla, New Delhi (2) [ENTITY] Respondents II. Criminal Revision Petition No.22/11 ID No.: 02406R0086812011 M/s Terra Real Estate Pvt. Ltd. Having its office at B7/1, Safdarjung Enclave Extension New Delhi110029 [CASE NUMBER] 1 of 8 Through its Director Shri [ENTITY] Revisionist Versus 1.[ENTITY] S/o Late Jafar Raza Zaidi R/o A27/31, Johri Farms Lane No. 1, Jamia Nagar Okhla, New Delhi 2. [ENTITY] Respondents Instituted on: 15.03.2011 and 26.03.2011 Judgment reserved on: 08.07.2011 Judgment pronounced on: 08.07.2011 J U D G M E N T
1. These two criminal revision petitions are directed against the order dated 15.12.2010 whereby the two revisionists stood summoned to stand trial for offence under [SECTION] of [ACT], along with two others, on the complaint preferred on 02.12.2010 by the respondent no. 1 in the court of Metropolitan Magistrate. In the [CASE NUMBER], the order subsequently passed on 03.03.2011 has also been questioned.
2. On notice, the respondent no. 1 has appeared and has resisted both [CASE NUMBER] 2 of 8 the petitions.
3. I have heard Sh. [ENTITY], Advocate for the revisionist and Sh. [ENTITY], Advocate for respondent no. 1 at length. Both sides took me through the trial court record and the connected documents filed with the revision petitions. I have given my considered thoughts to the relevant contentions that have been urged.
4. For the sake of convenience, the respondent no. 1 shall hereinafter be referred to as "the complainant" while revisionist M/s Terra Real Estate Pvt. Ltd. and [ENTITY] ([ENTITY]) shall hereinafter be referred as "accused no. 1 and 2" (which is their respective description in the proceedings before the Metropolitan Magistrate).
5. The criminal complaint was preferred by the complainant alleging offence under [SECTION] of [ACT] respecting dishonour of cheque bearing no. 588416 dated 01.07.2010 for a sum of Rs. 1 crore drawn on account no. 05031930008215 held with HDFC Bank Ltd., D6/3, Safdarjung Enclave opposite Deer Park, New Delhi29. It is undisputed on both sides that the said account is maintained by the drawer [ENTITY], in his individual name, the said account holder being accused no. 4 before the Magistrate (to be hereinafter referred to as "accused no. 4" for [CASE NUMBER] 3 of 8 convenience).
6. The cheque when presented was returned unpaid. It is the case of the complainant that he issued a legal notice through counsel on 19.10.2010 demanding the payment of the amount of the cheque within a period of 15 days. Admittedly, the notice was addressed, amongst others, to accused no. 1 and 4. It is not disputed that no notice was issued to accused no. 2. It is further undisputed case that in answer to the said legal notice of demand, accused no. 4 sent a reply dated 03.11.2010 through his Advocate, inter alia, explaining that the complainant had approached the accused no. 4 in April, 2010 to lend him an amount of Rs. 1 crore for construction of his house in Delhi pursuant to which request, the cheque in question had been issued by accused no. 4 "from his personal account".
7. The complaint preferred before the Metropolitan Magistrate, inter alia, alleged that cheque in question had been issued under the signatures of accused no. 4 for and on behalf of accused no. 1 company in which accused no. 2 was described as one of the directors. It has been stated in the complaint that the cheque was issued under the signatures of the accused no. 4 from his personal account to discharge the liability of accused no. 1 company.
8. The Ld. Magistrate after recording presummoning evidence passed the impugned order dated 15.12.2010 whereby she directed, amongst [CASE NUMBER] 4 of 8 others, accused no. 1 and 2 to be summoned.
9. Accused no. 1 and 2 have come up in the revision petitions before this court questioning the legality, correctness and propriety of the said order mainly on the grounds that the revisionists herein are not the persons who had drawn the cheque in question nor connected in any manner with the account against which it had been issued and, therefore, could not have been summoned for offence under [SECTION] of [ACT]. In addition, it has been argued that the summoning order passed against accused no. 2 is bad in law for the further reason that he was not served with the notice of demand.
10.The complainant has objected to the maintainability of the revision petitions before this court on the grounds that the order of summoning is an interlocutory order and, therefore, the restriction on the jurisdiction of this court under [SECTION] would come into play. It has been further submitted that in terms of law laid down by Hon'ble Supreme Court in [PRECEDENT], as further explained in [PRECEDENT], the proper remedy was a petition before Hon'ble High Court invoking its jurisdiction under [SECTION] [ACT].
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11.I have considered the above submissions made by the counsel for complainant questioning the jurisdiction of this court in entertaining this revision petition. I am afraid the submissions about the order of summoning being interlocutory is against settled law on the subject. Reference in this context may be made to [PRECEDENT], wherein it was categorically held that issuance of summons indisputably is not an interlocutory order within the meaning of [SECTION] [ACT].
12.As regards the contentions based on the observations in the cases of [PRECEDENT] (supra) and [PRECEDENT] (supra), I find that the two said judgments do not lay down a law that the revisional jurisdiction is barred against orders of summoning passed by the Magistrate under [SECTION] [ACT]. In the case of [PRECEDENT] (supra), the basic issue was whether a Magistrate could review his own order. This was in the context of law earlier laid down in [PRECEDENT]. It was in that context that Hon'ble Supreme Court referred to the remedy available under [SECTION] [ACT]. It was not held in [PRECEDENT] (supra) that the remedy under [SECTION] [ACT] was the "only" remedy that could be availed of. The observations in [CASE NUMBER] [PRECEDENT] (supra) have to be read in this light.
13.Since the counsel for the complainant has not come up with any law showing that the revisional jurisdiction of this court is barred, the revision petitions have been entertained.
14.Coming to the contentions on merits, it being undisputed case that the cheque in question was issued by accused no. 4 from his personal account, any pleadings trying to add to the role of others cannot be accepted. The scope of offence punishable under [SECTION] of [ACT] is very clear. It gets attracted only against "a person" who has issued the cheque " on an account maintained by him". Admittedly, this description does not cover either of the two revisionists before this court. Since the account in question is of individual (accused no.4), the principles governing a company and liability of its directors would not apply here.
15.In above facts and circumstances, even if notice of demand has been issued to accused no. 1 after the dishonour of the said cheque, criminal liability does not get attracted to either of the two revisionists.
16.In above view, it is found that the Ld. Magistrate fell into error in issuing summons against two revisionists. The impugned order is thus set aside to the extent thereby the revisionists were summoned to stand trial. The revision petitions stand disposed of with these [CASE NUMBER] 7 of 8 observations.
17. The trial court records along with copy of this judgment be sent back. A copy of this judgment passed on file of criminal revision No. 05/11 should be placed by the Reader on file of connected criminal revision No. 22/11.
18.The files of criminal revision petitions be consigned to the record room.
Announced in open Court today on this 08th day of July , 2011 ([ENTITY]) District Judge & Additional Sessions Judge, I/C, South District Saket, New Delhi [CASE NUMBER] 8 of 8