CRL.M.C.3308/2008

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REPORTABLE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+CRIMINAL MISCELLANEOUS CASE NO.3308 OF 2008

Reserved on: 18 August, 2010

Date of Decision:30^th August, 2010

SANDEEP KHANNA & ANR. ..... Petitioners

Through:

Mr. Vijay Aggarwal

and Mr. Gurpreet

Singh, Advs.

Versus

STATE & OTHERS

..... Respondents

Through:

Mr. T.K. Ganju, Sr.

Adv. with Mr. A.K.

Thakur,

Mr.

R.K.

Mishra

and

Mr.

Anesh Paul, Advs.

for R-2.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1.Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ?

Yes.

3. Whether the judgment should be reported

in the Digest ?

Yes.

SANJIV KHANNA, J.:

1.

Mr. Sandeep Khanna, sole proprietor of M/s. Kripa

Overseas, has filed the present petition under Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as the

Code, for short) for quashing of the order dated 26^th April, 2006

taking cognizance and summoning him in the complaint case

No.1965/2005 titled ―NAFED Vs. Kripa Overseas‖ filed under

Section 138 of the Negotiable Instrument Act, 1882 (hereinafter

referred to as the Act, for short).

2. NAFED has filed the said complaint on account of

dishonour of cheque No.411372 drawn on Canara Bank, Chandni

Chowk, Delhi, of Rs.10 crores. The cheque was presented for

encashment on 19^th October, 2005. The allegation made in the

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CRL.M.C.3308/2008

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complaint is that the petitioner had approached the NAFED in

the month of February, 2004 with the proposal to import

asafetida (Heeng) and rolling scrap in the name of NAFED from

Tazikistan/Kyrgystan and was advanced a sum of Rs.10 Crores

for this purpose. A Memo of Understanding dated 20^th

September, 2004 was executed.

3. Learned counsel for the petitioner has not referred or

controverted the allegations made in the complaint on merits.

However, four contentions are raised. These contentions have

been dealt with below.

4. It was submitted that the summoning order dated 26^th

April, 2006 was a non-speaking and mechanical order which

was passed without application of mind by the learned

Metropolitan

Magistrate

(Magistrate,

for

short).

The

summoning order placed on record is not cyclostyled. It is a

computer print-out which is also partly hand written. The first

line of the order states that the Magistrate had heard the learned

counsel for the complainant and had perused the affidavit of the

complainant filed on record. It records that the complaint was

well within the period of limitation. It states that the learned

Magistrate was of the opinion that prima facie there was

sufficient evidence and grounds to summon the accused.

Learned counsel for the petitioner submitted that the date of

hearing, the date for which notice was issued and the name of

counsel were filled up by hand and this proves and establishes

that a pre-written or composed computer print-out was filled up

and notice has been issued. The said contention is merely a

presumption. Petitioner has not placed on record any other

order passed by the same Magistrate in a different case wherein

the same alleged pre-written/pre-composed computer printout

was used. I have already quoted above the language of the order.

Merely because the dates and presence of the counsel are hand-

written, it does not show that the order dated 26^th April,2006

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was pre-dictated/composed order which was filled-up and the

summoning/cognizance order was passed mechanically without

examining the allegations in the complaint and the pre-

summoning evidence.

5. Learned counsel for the petitioner submitted that Mr.

Sandeep Khanna is a Proprietor of M/s. Kripa Overseas and the

learned Magistrate has overlooked the fact that Mr. Sandeep

Khanna and M/s. Kripa Overseas had been made two separate

accused. Thus it