IN THE COURT OF SH. [ENTITY], ADDL. SESSIONS JUDGE WEST - 04, TIS HAZARI COURTS, DELHI CRIMINAL REVISION No. 46/3 IN THE MATTER OF : Sh. [ENTITY], S/o Late Sh. Gyan Chand Sood R/o C19, Mukhram Garden, Tilak Nagar, Delhi 110018 PETITIONER versus (1) State (Govt. of NCT of Delhi) Through Public Prosecutor Delhi (2) Sh. [ENTITY], S/o Sh. Hari Lal R/o A1/32, Janakpuri, near Metro Pillar No. 624, New Delhi 110058 RESPONDENTS DATE OF FILING : 13.05.2013 DATE OF ARGUMENT : 19.04.2014 DATE OF ORDER : 19.04.2014 O R D E R
1. This is a revision petition filed by petitioner Sh. [ENTITY] CR No. 46/3 Sh. [ENTITY] vs. State & Anr. PAGE No. 1/7 against the impugned Order dated 23.02.2013 passed by the Ld. MM thereby dismissing the complaint filed by the petitioner u/[SECTION] [ACT].
2. The brief facts necessary for disposal of the present petition are that the petitioner filed one complaint u/[SECTION] [ACT] against the respondent [ENTITY] with contention that the respondent was running a coaching institute for the aspiring students who wanted to secure admission in various academic courses. It was contended that the accused/respondent approached the complainant/ petitioner and offered coaching/teaching services to the daughter of petitioner and assured to render services and consultancy and to provide all necessary assistance and efforts for securing the admission for the daughter of petitioner in medical education course in best institution. The respondent demanded Rs. 20,00,000/ in lieu of above mentioned services regarding securing of admission and the complainant in turn paid the said amount. On failure of the respondent to secure admission, the respondent refunded a sum of Rs. 7,50,000/ in cash and issued seven cheques for the balance amount of Rs. 12,50,000/. Five cheques of Rs. 2,50,000/ each were dishonored. Notice was issued and complaint was filed.
CR No. 46/3 Sh. [ENTITY] vs. State & Anr. PAGE No. 2/7
3. The complainant examined himself as CW1 and tendered different documents. Vide order dt. 23.02.2013 i.e the impugned order the Ld. Trial court dismissed the complaint with observation that the amount for which cheques were issued was not legally recoverable as the alleged agreement of procuring admission in a medical examination course is hit by the provisions of [SECTION] of the [ACT] because consideration and object of agreement was not lawful.
4. By way of present petition, it is contended by petitioner that the impugned order is liable to be set aside as the same is totally against the provisions of law and miscarriage of justice would arise from misconception of law and irregularity of procedure. It is further contended and argued that there is a presumption in favour of petitioner that the cheque in question was issued in discharge of legally enforceable debt and liability and that the said presumption can only be rebutted by accused during course of trial. It is further submitted by the counsel that the presumption mandated by [SECTION] of the [ACT] does not include the existence of a legally enforceable debt of liability and it only refers to presumption in favour of holder of cheque. In support of his contention, the counsel for petitioner has referred to CR No. 46/3 Sh. [ENTITY] vs. State & Anr. PAGE No. 3/7 judgments of Hon'ble Supreme Court in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
5. I have heard ld. counsel for petitioner and carefully perused the record in the light of submissions made before me.
6. It is clear from the contents of the complaint, hand written acknowledgment Ex.CW1/1 and affidavit Ex.CW1/A that a sum of Rs. 20,00,000/ was given by the complainant to the accused as consideration for arranging/securing admission for his daughter in medical institution. The trial court while dismissing the complainant filed by the petitioner has observed that the alleged agreement between the parties had not become the contract as the consideration in the present case was unlawful and the agreement itself was not enforceable in terms of [SECTION] of the [ACT] which deals with lawfulness of consideration and object of an agreement. The trial court has also referred to the judgment of Hon'ble Delhi High Court in [CASE NUMBER]. So far as contention of the Ld. Counsel for the petitioner that the amount of Rs.20 lacs included other expenses of teaching etc., is concerned, is is mentioned in the impugned order that no receipt, admit card etc., have been placed on record to CR No. 46/3 Sh. [ENTITY] vs. State & Anr. PAGE No. 4/7 show that the accused was imparting teaching / training as averred by the complainant.
7. If own case of the complainant is analised it reveals that the whole amount was given to accused for the purpose of securing admission in medical institution only. It is mentioned in para 2 of the affidavit ExCW1/F that "the accused further informed me that in lieu of his above mentioned services regarding securing of admission in medical institution, he would charge his fees and other expenses to the tune of Rs.20 lacs". Further that "the accused further undertook that in case he fails to provide the above mentioned services he would return the aforesaid amount to me with interest". If the complete contents of the affidavit and documents are perused it is crystal clear that the amount of Rs.20 lacs was given only for securing admission in medical institution and the other facts regarding teaching / coaching / training have been inserted only with a view to validate the claim. It is so also because the complainant has not given any breakup of the expenses if the amount was given for different acts.
8. The Ld. Counsel for the petitioner has stressed upon the presumption to be raised by the Ld. Trial Court but such a content is found to be devoid of merits because presumption CR No. 46/3 Sh. [ENTITY] vs. State & Anr. PAGE No. 5/7 has to be drawn when there is absence of material to the contrary. In the present case, the complainant himself has explained the nature of the agreement in his complaint, affidavit and document ExCW1/1 i.e the handwritten undertaking of the accused. So in view of clear facts regarding nature of agreement, the complainant can not hide behind the presumption of law. The judgment relied upon by the counsel for the petitioner in this regard are not helpful being distinguishable facts.
9. It is well settled law that summoning of a person as an accused is a criminal case is a very serious matter and summoning order should not be passed by the courts in mechanical manner and there must be proper application of judicial mind. If contention of the Ld. Counsel for the petitioner is accepted, it would mean that summoning is mandatory in every case u/[SECTION] [ACT], which can never be the object of the law.
10.A careful perusal of the record in general and the impugned Order in particular, it reveals that the petitioner has not been able to show any reasonable ground for inference with the impugned Order. It is well settled law that revisional jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is CR No. 46/3 Sh. [ENTITY] vs. State & Anr. PAGE No. 6/7 manifest error of law and consequently there has been a flagrant miscarriage of justice (ref. [PRECEDENT]). If the impugned order is analyzed in light of the scope of [SECTION] [ACT], the petition is found to be devoid of merits. The impugned order is a speaking and reasoned order and the Ld. Trial Court has taken into consideration all the relevant facts while passing the said order. No wrong, illegality, impropriety or irregularity is noticed in the impugned order.
11.In view of above discussion, the revision petition is dismissed.
TCR be sent back alongwith copy of this Order. File of the revision petition be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ([ENTITY]) TODAY i.e.ON 19 APRIL, 2014 ASJ:04:WEST:THC:DELHI th 19.04.2014 CR No. 46/3 Sh. [ENTITY] vs. State & Anr. PAGE No. 7/7