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IN THE HIGH COURT OF DELHI
S.N. DHINGRA, J.
Shree Raj Travels and Tours Ltd. and Others - Appellant
Versus
Destination of The World (Subcontinent) Private Limited - Respondent
Criminal M.C. Nos. 2652, 2653, 2654, 2655, 2656, 2657, 2658, 2659, 2661, 2662, 2663, 2665, 2670, 2678 and 2692 of 2010 and Criminal Misc. A. Nos. 13888-89, 13890-91, 13892-93, 13894-95, 13896-97, 13898-99, 13900-01, 13902-03, 13906-07, 13908-09, 13910-11, 13914-15, 13920-21, 13932-33 and 13960-61 of 2010
Decided On : 23-09-2010
Advocate Appeared:
For the Appellant : Siddharth Luthra, Jatin Zaveri and Arshdeep
Headnote:
Criminal Procedure Code, 1973 - Section 482 - Inherent power - Challenge to summoning order passed by MM on complaint U/S 138 of Negotiable Instruments Act, 1881 - Petitioner claimed that no specific averment were made by complainant in the complaint regarding how the Directors were responsible for dishour of cheque - Court was of view, as per Company Law, the Directors have collective towards the company and each and every Directors has to be considered in charge of responsible for conduct and business of company and can be summoned by court - Court further opined the statutory law u/s 106 of Evidence Act, that a person having special knowledge of fact has the onus to prove the fact and onus cannot be shifted to the complainant to aver or prove that only a particular Director of the company was responsible for conduct of company - The resignation of the petitioner from Director in company, is a defence of the petitioner, which he can take before trial court concerned - No merit - Petition dismissed.
[Paras 14 & 15]
SHIV NARAYAN DHINGRA, J.
1. This bunch of petitions has been filed by the petitioners who have been summoned by the learned Metropolitan Magistrate on a complaint by respondent u/s 138 of the Negotiable Instruments Act (in short NI Act) because of dishonour of cheque issued by the company. This Court in its judgment titled as Rajesh Agarwal v. State and Anr. Crl.M.C. No. 1996/2010 decided on 28th July, 2010 Rajesh Agarwal Vs. State and Another, (2011) 2 Crimes 711 had considered prevailing scenario of cases u/s 138 and after considering the provisions of NI Act, Cr.P.C. and the fact that the trial of cheque-dishonour cases had to proceed in a summary trial manner observed as under:
11. The trial u/s 138 of N.I. Act cannot be carried like any other summons trial under IPC offences. The documents placed on record of the Court about the dishonour of cheque are the documents from banks and unless the accused says that these documents are forged, or he had not issued the cheque at all, he did not have any account in the bank, the cheque was not signed by him, the cheque book was forged by the complainant or other similar claim, the evidence of the complainant about dishonour of cheque cannot be questioned, nor the complainant can be asked to depose before the court again. If the case u/s 138 N.I. Act, which is document based, is not tried in summary manner, the sole purpose of making this offence summary trial stands defeated. Thus in all cases u/s 138 of N.I. Act, once evidence is given by way of affidavit, at the stage of pre-summoning, the same evidence is to be read by the court at post summoning stage and the witness need not be recalled at post summoning stage unless court of MM, for reasons, considers it necessary.
2. This Court also specified the steps in a complaint u/s 138 to be taken as under:
17. The summary trial procedure to be followed for offences u/s 138 N.I. Act would thus be as under:
Step I: On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint and documents and if commission of offence is made out, take cognizance and direct issuance of summons of accused, against whom case is made out.
Step II: If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 Cr.P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused u/s 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence.
Step III: If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant.
Step IV: To hear arguments of both sides.
Step V: To pass order/judgment.
18. In all above Criminal Miscellaneous Petitions the petitioners have come to this Court raising one or the other defence. I consider that since summoning order in all these cases have been issued, it is now the obligation of these petitioners to take notice u/s 251 of Cr.P.C., if not already taken, and enter their plea of defence before the concerned MM court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witness, they should do so before the Court of MM. These petitions are, therefore, hereby dismissed.
3. The learned Counsel for the petitioners in petitions at hand however, submitted that petitioners were Directors of M/s Raj Travels and Tours Ltd. and no specific averments were made by the complainant in the complaint regarding how the Directors were responsible for dishonour of the cheque and the only averment made by the complainant in the complaint was that the petitioners being Directors of the company were responsible for the day-to-day conduct of
