CRL.M.C. 2480/2023 and connected

Page 1 of 13

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Judgment Reserved on: 3^rdNovember, 2023

Judgment Delivered on: 10^thNovember, 2023

+

CRL.M.C. 2480/2023, CRL.M.A. 9435/2023 (stay)

NORTHERN INDIA PAINT COLOUR

AND VARNISH CO. LLP

..... Petitioner

Through:

Mr. Kotla Harshavardhan, Ms.Mansi

Sood, Ms. Rishbha Arora and

Mr. Divyank Yadav, Advocates.

versus

SUSHIL CHAUDHARY

..... Respondent

Through:

Mr. Viraj Datar, Senior Advocate

with Mr.Atul T.N. and Ms. K. Pallavi,

Advocates.

+

CRL.M.C. 4141/2023, CRL.M.A. 15544/2023 (stay)

MR. SUSHIL CHAUDHARY

..... Petitioner

Through:

Mr.Viraj Datar, Senior Advocate with

Mr.Atul T.N. and Ms. K. Pallavi,

Advocates.

versus

THRIVING FARM BUILDERS PVT LTD.

..... Respondent

Through:

Mr. Kotla Harshavardhan, Ms. Mansi

Sood, Ms. Rishbha Arora and

Mr. Divyank Yadav, Advocates.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

1.

Both the present petitions raise similar issues and hence are being

taken up together for disposal.

Digitally Signed By:DINESH

KUMAR

Signing Date:10.11.2023

11:53:41

Signature Not Verified

CRL.M.C. 2480/2023 and connected

Page 2 of 13

2.

CRL.M.C.2480/2023 has been filed by the petitioner/complainant

Northern

India

Paint

Colour

and

Varnish

Co.

LLP

(hereinafter

“Complainant”) impugning the order dated 15^thFebruary, 2023 passed by

the learned Additional Sessions Judge (ASJ), Tis Hazari Courts, Delhi,

whereby the summoning order dated 9^thJanuary, 2020 passed by the

Metropolitan Magistrate (MM), Central, Tis Hazari Courts, Delhi, in a

complaint case under Section 138 of the Negotiable Instruments Act, 1881

(NI Act) being CC No. 380/2020 has been set aside and remanded the matter

back to the learned MM for fresh consideration. The relevant observations

from the impugned order are set out below:

“6.

ground to proceed against the accused. However, in the instant

case, the said inquiry was not conducted. In absence of the

said mandatory inquiry, the impugned order of summoning of

the

petitioner

cannot

be

legally

sustained.

Hence,

the

impugned order is hereby set aside.

satisfied or not. In the said inquiry, the ld. Trial Court shall

properly appreciate the Share Sale and Purchase Agreement

dated 27.09.2019 between the parties to ascertain if the

amount of the cheque in question has become lawfully due

and payable by the petitioner to the respondent towards the

sale price of the shares and whether pre-requisites for the

transfer of the said shares, as contained in the said

agreement, have been complied by the respective parties.”

Digitally Signed By:DINESH

KUMAR

Signing Date:10.11.2023

11:53:41

Signature Not Verified

CRL.M.C. 2480/2023 and connected

Page 3 of 13

3.

CRL.M.C.4141/2023 has been filed by the petitioner/accused Sushil

Chaudhary (hereinafter “Accused”), seeking quashing of the order dated 27^th

January, 2020 passed by the learned MM, whereby the Accused has been

summoned in CC No.886/2020 filed by the Complainant under Section 138

of the NI Act on the ground that the mandatory inquiry under Section 202 of

the Code of Criminal Procedure, 1973 (CrPC) has not been conducted by the

learned MM.

4.

Both sides have filed brief written note of submissions in support of

their submissions.

5.

Counsel for the Complainant submits that the mandatory inquiry in

terms of Section 202 of the CrPC was duly conducted by the learned MM in

both the complaint cases. For the purpose of the said inquiry, it is not

necessary for the learned MM to examine witnesses and the said inquiry can

be conducted on the basis of pre summoning evidence and the documents on

record. Further, it is not mandatory for the learned MM to formally mention

Section 202 of the CrPC in the summoning order, if otherwise it is clear that

the inquiry under the aforesaid section has been duly conducted. Reliance in

this regard has been placed on Re: Expeditious Trial of Cases Under

Section 138 of NI Act 1881, 2021 SCC OnLine SC 325.

6.

It is further submitted that in view of the presumption c