Judgment

Mr. Aman Chaudhary, J. :-CRM-5562-2023

For the reasons mentioned in the application, the same is allowed and reply on behalf of the respondent is taken on record subject to all just exceptions.

CRM-M-12362-2019

1. The present petition has been filed under Section 482 Cr.P.C. for setting aside the impugned order dated 01.06.2018, Annexure P-4, passed by the Additional Sessions Judge, Gurugram.

2. The facts in brief as emerge from the complaint are that the petitioner-accused is a designated partner of the firm, namely M/s Coral Travel Party Saga LLP., which took an amount of Rs. 17 lac from the respondent-complainant. In order to discharge its liability, a cheque amounting Rs. 5 lac was issued, which on presentation was dishonoured, leading to filing of the complaint under Section 138 of the Negotiable Instruments Act, 1881 against three persons including the petitioner.

3. Learned counsel for the petitioner submits that the trial Court had passed the summoning order only qua accused No.1 and 2, while the complaint qua the petitioner was dismissed. The said order having been taken up in revision wherein without the petitioner being heard, was set aside and modified to the effect that she be summoned to face the criminal process under Section 138 NI Act, 1881, Annexure P-4. In this regard, reliance is placed on Chhatradhari Ram vs. State of Jharkhand and another , 2016 (2) AICLR 673.

4. Learned counsel for the respondent vehemently opposes the prayer made, however is unable to distinguish the judgment relied upon by the learned counsel for the petitioner.

5. Heard the learned counsel for the parties.

6. For the adjudication of the case at hand, it would be apposite to refer to relevant provision of Section 401 (2) Cr.P.C., which reads thus:

“(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.”

7. Hon’ble The Supreme Court in Chhatradhari Ram (supra) has held thus:

“Law on the point stands settled by a judgment of three-Judge Bench of this Court in the case of Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors. , (2012) 10 SCC 517 . Relevant paras 46, 48 and 53 of the same are quoted hereunder:

“46. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, up to the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401 (2) of the Code provided that no order in exercise of the power of the revision sha