Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
% Reserved on : 22 August, 2013
st
Date of decision : 1 November, 2013
+ CRL.M.C. 3669/2011
VIJAY GHAI & ANR ..... Petitioners
Through : Ms. Arundhati Katju, Mr.
Sidharth Joshi, Ms. Prerna
and Ms. Gunjan Chawla,
Advs.
versus
PAL SINGH KARTAR SINGH ..... Respondent
Through : None.
+ CRL.M.C. 602/2012
VIJAY GHAI ..... Petitioner
Through : Ms. Arundhati Katju, Mr.
Sidharth Joshi, Ms. Prerna
and Ms. Gunjan Chawla,
Advs.
versus
STATE & ANR ..... Respondents
Through : Ms. Ritu Gauba, APP.
+ CRL.M.C. 603/2012
MOHIT GHAI ..... Petitioner
Through : Ms. Arundhati Katju, Mr.
Sidharth Joshi, Ms. Prerna
and Ms. Gunjan Chawla,
Advs.
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 1 of 35
versus
STATE & ANR ..... Respondents
Through : Ms. Ritu Gauba, APP.
+ CRL.M.C. 604/2012
VIJAY GHAI ..... Petitioner
Through : Ms. Arundhati Katju, Mr.
Sidharth Joshi, Ms. Prerna
and Ms. Gunjan Chawla,
Advs.
versus
STATE & ANR ..... Respondents
Through : Ms. Ritu Gauba, APP.
Mr. Neeraj Gupta, Adv. for
R-2.
+ CRL.M.C. 606/2012
MOHIT GHAI ..... Petitioner
Through : Ms. Arundhati Katju, Mr.
Sidharth Joshi, Ms. Prerna
and Ms. Gunjan Chawla,
Advs.
versus
STATE & ANR ..... Respondents
Through : Ms. Ritu Gauba, APP.
CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 2 of 35
JUDGMENT
J.R. Midha, J.
1. The petitioners have challenged three summoning orders
passed by the learned Magistrate in three separate complaints under
Section 138 of the Negotiable Instruments Act.
Brief facts
CRL.M.C.Nos.603-04/2012
2. The petitioner appointed respondent no.2 as its franchisee to
th
sell its products on commission basis vide agreement dated 4
September, 2006. The franchisee business came to an end with
th
effect from 14 July, 2010 when the parties settled their disputes
th
amicably vide Memorandum of Understanding dated 14 July,
2010 and the petitioner paid Rs.5,00,000/- to the respondent in full
th
and final settlement vide post-dated cheque no.020030 dated 19
February, 2011 drawn on ICICI Bank, Ludhiana which was
deposited by respondent no.2 in State Bank of India, Saraswati
Vihar, Delhi and was dishonoured due to insufficient funds.
th
Respondent no.2 issued a notice dated 8 April, 2011 to the
petitioner by registered A.D. post duly received by the petitioners
who chose not to reply. Respondent no.2 instituted a complaint
under Section 138 of the Negotiable Instruments Act before the
ACMM, Rohini Courts, Delhi. Respondent no.2 filed the evidence
by way of his affidavit as Ex.PW1/A in which he proved the
th
memorandum of understanding dated 14 July, 2010 as Ex.CW1/2,
cheque, return memo and notice of dishonor and postal receipts as
Ex.CW1/3 to Ex.CW1/22. The learned Metropolitan Magistrate
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 3 of 35
considered the said evidence and issued the summons to the
petitioners.
Crl.M.C.No.3669/2011
3. Respondent supplied the fabric to the petitioners in terms of
order placed by them time to time and in discharge of said liability,
st
the petitioners issued cheques No. 139711 dated 21 September,
th
2010 and No.139712 dated 27 August, 2010, both drawn on
Allahabad Bank, Ludhiana, which were deposited by respondent in
Bank of Baroda, Chandni Chowk and were dishonoured upon
presentation due to insufficient funds. Respondent issued a notice
rd
dated 23 October, 2010 by registered A.D. post as well as UPC.
Despite service of said notice registered A.D. post as well as UPC,
the petitioners chose not to reply to the notice. Respondent
instituted the complaint under Section 138 of Negotiable
Instruments Act and led the evidence by way of affidavit as Ex.
CW-1/A in which he proved the invoices and bills as Exs. CW-1/1
to CW-1/29, cheques, return memo, notice and postal receipts/A.D.
cards as CW-1/30 to CW-1/41. The learned Metropolitan
Magistrate considered the evidence of the respondent and issued
the summon to the petitioners.
CRL.M.C.Nos.602/2012 and 606/2012
4. Respondent no.2 supplied the fabric to the petitioners in
terms of the order placed by them from time to time and in
discharge of the said liability, the petitioners issued cheque
th
No.139095 dated 27 December, 2009 drawn on Allahabad Bank,
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 4 of 35
Ludhiana which was deposited by respondent no.2 in Bank of
Baroda, Chandni Chowk and was dishonoured upon presentation
due to insufficient funds. Respondent no.2 issued a notice dated
th
10 June, 2010 by registered A.D. post as well as UPC. Despite
service of the said notice by registered A.D. post as well as UPC,
the petitioners chose not to reply to the notice. Respondent no.2
instituted the complaint under Section 138 of the Negotiable
Instruments Act and led the evidence by way of affidavit as
Ex.PW1/A in which he proved the invoices in support of the fabric
supplied to the petitioners as Ex.CW1/1 to Ex.CW1/7, cheque,
return memo, notice of dishonor and the postal receipts/A.D. cards
as Ex.CW1/8 to Ex.CW1/17. The learned Metropolitan Magistrate
considered the evidence of respondent no.2 and issued the
summons to the petitioners.
5. The petitioners have challenged the summoning orders on
two grounds. The first ground of challenge is that the Delhi Court
does not have the territorial jurisdiction as the petitioners are
residing at Ludhiana and the cheques in question were also drawn
on the Bank at Ludhiana. The second ground of challenge is that
the learned Metropolitan Magistrate has not conducted any inquiry
or investigation in terms of Section 202 Cr.P.C.
Territorial Jurisdiction
6. The law with respect to the territorial jurisdiction of the
Court under Section 138 of the Negotiable Instruments Act has
been set at rest by the Supreme Court in Nishant Aggarwal v.
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 5 of 35
Kailash Kumar Sharma, 2012 (7) SCALE 753 in which the
Supreme Court, after considering Shri Ishar Alloy Steels Ltd. v.
Jayaswals Neco Ltd . (2001) 3 SCC 609 and Harman Electronics
Private Limited v. National Panasonic India Pvt. Ltd., (2009) 1
SCC 720, held that the Court where the cheque is deposited for
collection, has jurisdiction to try the accused under Section 138 of
Negotiable Instruments Act in terms of the principles laid down in
K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510.
The Supreme Court held that the issue of territorial jurisdiction of
the Courts did not even arise for consideration in Shri Ishar Alloy
Steels Ltd. (supra), and therefore it does not affect the ratio in K.
Bhaskaran (supra). The Supreme Court further observed that in
Harman Electronics Private Limited (supra), the Court held that a
notice of dishonor under Section 138 of Negotiable Instruments
Act alone would not confer the jurisdiction to try the accused at the
place of issuance of the notice. However, the Supreme Court did
not deviate from the other principles laid down in K. Bhaskaran
(supra). In Nishant Aggarwal (supra), the Supreme Court re-
affirmed the jurisdiction of the Court where the cheque is presented
for collection in terms of K. Bhaskaran (supra). The relevant
portion of the said judgment is reproduced hereunder:
“ 2. The question which has to be decided in this
appeal is whether the Court, where a cheque is
deposited for collection, would have territorial
jurisdiction to try the accused for an offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (in short "the N.I. Act") or
would it be only the Court exercising territorial
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 6 of 35
jurisdiction over the drawee bank or the bank on
which the cheque is drawn?
xxx xxx xxx
10. Mr. Ahmadi, learned senior counsel for the Appellant
in support of his claim that the Court at Bhiwani has no
jurisdiction heavily relied on the decision of this Court
in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd.
(2001) 3 SCC 609. We were taken through the entire
judgment. Though the case is also related to N.I. Act,
the issue of territorial jurisdiction was not the
subject-matter thereof . In Ishar Alloy Steels (supra) , a
three-Judge Bench of this Court defined the term "the
bank" appearing in clause (a) of Section 138 of the N.I.
Act as the drawer's bank. It was defined in the context of
the statutory period of six months as mentioned in clause
(a), hence, this Court held that the date of presentation of
the cheque for calculating the statutory time period of six
months will be the date of presentation of the cheque to
the drawer's bank i.e. Payee bank and not the drawee's
bank i.e. Collecting bank. This Court has correctly
applied the principle of strict interpretation appreciating
that Section 138 of the N.I. Act creates an offence as the
drawer of the cheque cannot be expected or saddled with
the liability to hold the cheque amount in his account
beyond six months. The reading of the entire decision
in Isher Alloy Steel (supra) shows that jurisdiction of
the Court to take cognizance arises only where cheque
is presented to the bank of drawer either by drawee's
bank or the drawee/payee personally within six
months . In other words, the analysis of the said decision,
the ratio of Isher Alloy Steel (supra) deals with such a
situation where the cheque has been presented within six
months to the drawer's bank by the payee in any manner.
Inasmuch as the interpretation relates to filing of
complaint within the statutory time period of six months,
we are of the view that the reliance on the law laid
down in Isher Alloy Steel (supra) has no relevance as
far as the present case is concerned. In fact, that is the
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 7 of 35
reason that in Isher Alloy Steel (supra) , the judgment
in K. Bhaskaran (supra) was not discussed since
territorial jurisdiction was not the issue in that case .
In view of the same, the definition of the term "the bank"
envisaged in Isher Alloy Steel (supra) cannot be
employed to decide the jurisdictional aspect and dilute
the ratio of the judgment in K. Bhaskaran (supra) .
Hence, we are of the view that on the strength of the
judgment in Isher Alloy Steel (supra) defining the term
"the bank", it cannot be said that jurisdiction to file a
complaint under Section 138 of the N.I. Act does not lie
at the place of drawee's bank. To put it clearly, the
judgment in Isher Alloy Steel (supra) does not affect
the ratio of the judgment in K. Bhaskaran
(supra) which provides for jurisdiction at the place of
residence of the payer and the payee. In such
circumstances, we are of the view that the judgment
in Isher Alloy Steel (supra) as well as judgments of
various High Courts relied on by the Appellant
cannot be read against the Respondent to hold that
the Magistrate at Bhiwani does not have the
jurisdiction to try the complaint .
xxx xxx xxx
12. Mr. Ahmadi, learned senior counsel for the Appellant
has also relied on a decision of this Court in Harman
Electronics Private Limited and Anr. v. National
Panasonic India Private Limited : (2009) 1 SCC 720.
In Harman Electronics (supra) , the complainant and the
accused entered into a business transaction. The accused
was a resident of Chandigarh. He carried on the business
in Chandigarh and issued a cheque in question at
Chandigarh. The complainant had a Branch Office at
Chandigarh although his Head Office was at Delhi. He
presented the cheque given by the accused at Chandigarh.
The cheque was dishonoured at Chandigarh. The
complainant issued a notice upon the accused asking him
to pay the amount from New Delhi. The said notice was
served on the accused at Chandigarh. On failure on the
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 8 of 35
part of the accused to pay the amount within 15 days
from the date of the communication of the said letter, the
complainant filed a complaint at Delhi. In the complaint,
it was stated that the Delhi Court has jurisdiction to try
the case because the complainant was carrying on
business at Delhi, the demand notice was issued from
Delhi, the amount of cheque was payable at Delhi and the
accused failed to make the payment of the said cheque
within the statutory period of 15 days from the date of
receipt of notice. It is further seen that the cognizance of
the offence was taken by the learned Magistrate at Delhi.
The accused questioned the jurisdiction of the Magistrate
at Delhi before the Addl. Sessions Judge, New Delhi.
The Sessions Judge held that the Magistrate at Delhi had
jurisdiction to entertain the complaint as, admittedly, the
notice was sent by the complainant to the accused from
Delhi and the complainant was having its Registered
Office at Delhi and was carrying on business at Delhi.
The learned Judge has also observed that the accused
failed to make payment at Delhi as the demand was made
from Delhi and the payment was to be made to the
complainant at Delhi. The Delhi High Court dismissed
the petition filed by the accused. Thereafter, the accused
approached this Court. This Court considered
Section 138 of the N.I. Act and also referred to K.
Bhaskaran's case (supra) and quoted the five
components of offence under Section 138 which have
been noted in paragraph supra. This Court reiterated that
the five different acts which are the components of
offence under Section 138 of the N.I. Act were done in
five different localities, any one of the courts exercising
jurisdiction in one of the five local areas can become the
place of trial for the offence under Section 138 of the N.I.
Act and the complainant would be at liberty to file a
complaint at any of those places. Ultimately, this Court
held that the Chandigarh Court had jurisdiction to
entertain the complaint because the parties were
carrying on business at Chandigarh, Branch Office of
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 9 of 35
the complainant was also in Chandigarh, the
transactions were carried on only from Chandigarh
and the cheque was issued and presented at
Chandigarh . This Court pointed out that the complaint
did not show that the cheque was presented at Delhi,
because it was absolutely silent in that regard and,
therefore, there was no option but to presume that the
cheque was presented at Chandigarh. It is not in dispute
that the dishonour of the cheque also took place at
Chandigarh and, therefore, the only question which arose
before this Court for consideration was whether the
sending of notice from Delhi itself would give rise to a
cause of action in taking cognizance under the N.I. Act.
In such circumstances, we are of the view
that Harman Electronics (supra) is only an authority
on the question where a court will have jurisdiction
because only notice is issued from the place which
falls within its jurisdiction and it does not deviate
from the other principles laid down in K. Bhaskaran
(supra) . This Court has accepted that the place where
the cheque was presented and dishonoured has
jurisdiction to try the complaint. In this way, this
Court concluded that issuance of notice would not by
itself give rise to a cause of action but communication
of the notice would. In other words, the court clarified
only on the service in such notice and failure on the
part of the accused to pay the demanded amount
within a period of 15 days, thereafter, the commission
of an offence completes. We are of the view that this
Court in Harman Electronics (supra) affirmed what it
had said in K. Bhaskaran (supra) that court within
whose jurisdiction the cheque is presented and in
whose jurisdiction there is failure to make payment
within 15 days of the receipt of notice can have
jurisdiction to try the offence under Section 138 of the
N.I. Act . It is also relevant to point out that while holding
that the Chandigarh Court has jurisdiction, this Court
in Harman Electronics (supra) observed that in the case
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 10 of 35
before it, the complaint was silent as to whether the said
cheque was presented at Delhi. In the case on hand, it is
categorically stated that the cheque was presented at
Bhiwani whereas in Harman Electronics (supra) the
dishonour had taken place at Chandigarh and this fact
was taken into account while holding that Chandigarh
court has jurisdiction. In the complaint in question, it is
specifically stated that the dishonour took place at
Bhiwani. We are also satisfied that nothing said
in Harman Electronics (supra) had adverse impact on the
complainant's case in the present case.
13. As observed earlier, we must note that in K.
Bhaskaran (supra) , this Court has held that
Section 178 of the Code has widened the scope of
jurisdiction of a criminal court and Section 179 of the
Code has stretched it to still a wider horizon. Further, for
the sake of repetition, we reiterate that the judgment
in Ishar Alloy (supra) does not affect the ratio in K.
Bhaskaran (supra) which provides jurisdiction at the
place of residence of the payer and the payee . We are
satisfied that in the facts and circumstances and even on
merits, the High Court rightly refused to exercise its
extraordinary jurisdiction under Section 482 of the Code
and dismissed the petition filed by the Appellant-
accused.
14. In the light of the above discussion, we hold that the
ratio laid down in K. Bhaskaran (supra) squarely
applies to the case on hand. The said principle was
correctly applied by the learned Sessions Judge as well as
the High Court. Consequently, the appeal fails and the
same is dismissed. In view of the dismissal of the appeal,
the interim order granted by this Court on 09.12.2011
shall stand vacated.”
(Emphasis supplied)
7. These cases are squarely covered by Nishant Aggarwal
(supra) as the cheques in question were deposited at Delhi and
therefore, the learned Metropolitan Magistrate had clear
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 11 of 35
jurisdiction to entertain and try the complaints under Section 138
of the Negotiable Instruments Act.
Inquiry under Section 202 Cr.P.C.
8. Second ground of challenge is that the learned Metropolitan
Magistrate has not conducted any inquiry or investigation in terms
of Section 202 Cr.P.C. There is no merit whatsoever in this ground
as the learned Metropolitan Magistrate took into consideration the
evidence by way of affidavit of the complainant and the
documentary evidence on the basis of which prima facie case was
made out against the petitioners.
9. No further enquiry was warranted in the matter. This case is
squarely covered by Abhishek Agrawalla v. Boortmalt NV, (2011)
122 DRJ 42, in which this Court held as under:
“3. The only ground pressed during arguments of this
petition assailing order of learned MM is that the order was
bad in law in view of the fact that the trial court failed to
comply with the provisions of Section 202 Cr.P.C
whereunder the trial court was supposed to postpone the
issue of process and was to conduct an inquiry either himself
or direct investigation to be made by the police officials into
the allegations since the accused was residing at a place
beyond the area in which the trial court had jurisdiction.
4. It is submitted by the counsel for the petitioner that
recording of complainant‟s evidence on oath and evidence of
witnesses was required to be done by the Magistrate under
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 12 of 35
Section 200 Cr.P.C and the Magistrate after recording
complainant‟s evidence can issue process in respect of
accused person living within the jurisdiction. However, if the
accused was living beyond the jurisdiction of the court i.e.
accused was not living within Delhi, then in view of Section
202 Cr.P.C mere recording of complainant‟s evidence and
witnesses was not sufficient and an inquiry was required to
be conducted mandatorily under the provisions of Section
202 Cr.P.C before issuing process.
xxx xxx xxx
8. There are two kinds of cases which come before the court,
one where the offence is sought to be proved from
documents and the oral testimony is given before the court to
prove the documents by exhibiting the documents and by
deposing as to when the documents were executed and by
whom. The other kind of cases are where the case does not
depend on documentary evidence and depends upon only the
oral testimony. These are cases of physical hurt, injuries,
threats etc. In order to protect an innocent person being
summoned by the Magistrate on the basis of oral testimony
of a person and considering that a large number of false
complaints were being filed at far-off places just to harass
the people, the Parliament had amended Section 202 so that
the summoning orders were not issued mechanically by the
Magistrates and whenever the accused was of other State an
investigation or enquiry into the allegations was mandatorily
conducted either by the Magistrate himself or through police.
Say for example, a person files a complaint that on telephone
he had been threatened by a person seeking ransom or he had
been threatened to be killed and the person who allegedly
threatened him was living outside the jurisdiction of the
court. Before acting on this oral statement of the victim, it
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 13 of 35
would be incumbent upon the court to make an enquiry
about the call details, about the telephone and about
telephone number from which the threat was allegedly
received and the telephone number of the complainant. The
call details for period around the date of incident would
show if the calls had been made frequently or it was a
solitary call and the Magistrate can also make enquiry about
the person in whose name the telephone was standing. This
would enable the Magistrate to find out if there was
credibility in the statement given by the complainant. The
Magistrate can summon the officials of service provider
telephone company and make this enquiry himself. Similarly
there may be a case where a person alleges that while he was
at X place, Y a resident of other State had come there and
beaten him or abused him or threatened him or caused
injuries to him etc. The person produces his MLC and makes
an oral statement. The court in such a case, if the accused is
of outside his jurisdictional area, would have to get an
enquiry made through police if the accused was living at the
address given and if the accused had visited the place where
it was alleged that he had beaten or threatened. The
Magistrate can also get a fact finding enquiry done from
police of that State or police of his own State. However,
where the commission of offence is disclosed only from the
documents, no further enquiry except scrutinizing the
documents proved before the court by testimony of
complainant is feasible, I consider that the enquiry envisaged
under Section 202 Cr.P.C in such cases is an enquiry by way
of recording statement of complainant and careful scrutiny
of documents relied upon by the complainant. Say, if a case
against the accused is filed under Section 138 of Negotiable
Instruments Act and the accused lives in Noida while the
complainant lives in Delhi. The Magistrate in such a case has
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 14 of 35
only to consider if prima facie offence was committed or not
and if it has jurisdiction based on the documents i.e. whether
the cheque was dishonoured, whether the proper demand
notice was sent and still payment was not made etc.
Similarly there are several statutes where the offence is of
technical nature and the commission of offence can be made
out from the documents, say the offences under the
Companies Act, against the directors of the company for
violating the mandatory provisions regarding filing of
returns etc. The company may be registered in Delhi but the
director may be living in Noida or Gurgoan. In such a case,
the commission of offence has to be inferred only from the
documents and the enquiry under Section 202 Cr.P.C has to
be limited to scrutiny of the documents and recording of
statement of the complainant and cannot go beyond that.
9. What is the import of provisions of Section 202
Cr.P.C can be seen from the decision of the Supreme Court
in 2000(2) SCC 230 Rozy and another vs. State of Kerala. In
this case another provisions of sub Section 202, which is also
couched in mandatory language had come into question i.e.
Section 202(2) proviso. This proviso provides that where the
offence was triable by the court of Sessions, the Magistrate
shall call upon the complainant to produce all his witnesses
and examine them on oath. The proviso is couched in
mandatory words and the mandate is “He shall call upon the
complainant to produce all his witnesses and examine them
on oath”. The Supreme Court in this case observed that the
issue of complying with proviso to Sub Section 2 of Section
202 Cr.P.C would arise only in cases where the Magistrate
before taking cognizance of the case, decides to hold enquiry
and after enquiry if he decides to take the evidence of
witnesses on oath. The object and purpose of holding an
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 15 of 35
enquiry or investigation under Section 202 Cr.P.C is to find
out whether there was sufficient ground for proceeding
against the accused or not and that holding enquiry or
investigation is not an mandatory course before issue of
process against the accused or dismissal of the complaint. It
is an enabling provision to form an opinion as to whether or
not process should be issued and to remove from his mind
any hesitation that he may have fallen upon on mere perusal
of the complaint and consideration of complainant‟s
evidence on oath.
10. The Supreme Court further observed that the enquiry
under Section 202 is of a limited nature. Firstly it is to find
out whether there was a prima facie case against a person
accused of the offence in the complaint and secondly to
prevent the issuance of process in all such complaints that
are false or intended only to harass a person. In Kewal
Krishan v Suraj Bhan 1980 Supp. SCC 499, the Supreme
Court observed that what the Magistrate has to do is to see
whether on a cursory perusal of the complaint of the
complaint and the evidence recorded under preliminary
enquiry under Section 200 and 202 Cr.P.C there is prima
facie evidence in support of the charges leveled against the
accused. About use of the word „shall‟ in the proviso to sub
section 2, the Supreme Court made following observations:
“17. At initial stage, if objection is raised and it is
found by the Sessions Court that by non-holding of
inquiry, prejudice is caused to the accused, he may
direct the Magistrate to follow the procedure
prescribed under the proviso. It is no doubt true that
by the use of the words "shall", it appears that
language used in the proviso is of mandatory nature.
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 16 of 35
At the same time, it is a procedural law and it is to be
read in context of Section 200 which enables the
Magistrate to issue process without holding any
inquiry and that inquiry under Section 202 is itself
discretionary one giving option to examine or not to
examine witnesses. Hence, proviso to the said
subsection is required to be read accordingly though
couched in mandatory term by using the word 'shall'.
Normally, the procedure prescribed therein should be
followed, but non-observance of the said procedure
may not vitiate further proceedings in all cases. In a
case where a complaint is filed, not by the public
servant, and where the offence is exclusively triable
by the court of Session the Magistrate should follow
the proviso to sub-section (2) of Section 202 and call
upon the complainant to produce all his witnesses and
examine them on oath. This would be in consonance
with the provision of Section 208 which inter alia
provides for supply of copy of statements and
documents to accused. This would also facilitate the
Sessions Court in framing the charge or discharging
the accused. In the Sessions triable case, under Section
226 the prosecution has to open its case by describing
the charge brought against the accused and stating by
what evidence it proposes to prove the guilt of the
accused. On such submission, the Sessions Court is
required to consider the record of the case and the
documents submitted therewith and after hearing the
submissions of the accused and prosecution in this
behalf, to decide whether there is sufficient ground or
not for proceeding against the accused. Upon such
consideration, if the court finds that there is no
sufficient ground for proceeding against the accused,
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 17 of 35
he shall be discharged as provided under s. 227. In
case, where there is sufficient ground, court is
required to frame the charge as provided under s. 228.
Hence, for the purpose of framing the charge also the
recording of such evidence is necessary. It also
facilitates the accused to know allegation made
against him as well as evidence in support thereof.
However, in a case where complaint is filed by a
public servant after holding inquiry and recording the
statements, question of recording of such evidence
may not arise. Hence, compliance of proviso by the
Magistrate in all Sessions triable cases is not a must
and would not vitiate the further trial unless prejudice
caused to the accused is established.”
11. I, therefore, consider that in the present case where
disclosure of commission of offence was based on
documentary evidence produced by the complainant before
the court and from the documents it was prima facie clear
that a commission of offence under Section 420 IPC has
taken place, no further enquiry could have been held by the
Magistrate.
xxx xxx xxx
13. In Rosy v State (supra) the Supreme Court also agreed
with the submission of counsel for the appellant that the
provisions under Section 465 Cr.P.C would play a role at
any stage and observed as under:
„18. Further, the aforesaid interpretation would be in
consonance with Chapter XXXV of the Cr.P.C.,
which deals with irregularities in the proceedings,
which may or may not vitiate the proceedings.
Sections 460 and 461 provide which irregularities
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 18 of 35
would or would not vitiate the proceedings. In these
sections, there in no mention of Section 202, For our
purpose reference to Section 465 would suffice, which
inter alia specifically provides that irregularity in the
complaint, summons, warrant, order or other
proceedings before or during trial or in any inquiry
shall not be a ground for reversing order passed by the
competent Court, unless in the opinion of that Court a
failure of justice has in fact been occasioned thereby.
Sub-section (2) further provides that in determining
whether any irregularity in proceeding has occasioned
a failure of justice, the Court shall have regard to the
fact whether the objection could and should have been
raised at an earlier stage in the proceedings. Hence,
the statute does not expressly provide for nullification
of the order as a consequence of noncompliance of
proviso to sub-section (2) of Section 202, but provides
that unless prejudice is caused, the order is not to be
set aside. This would mean that during inquiry under
Section 202 when Magistrate examines the witnesses
on oath, as far as possible the proviso is to be
complied with but the mandate is not absolute.”
14. I consider that the learned MM rightly issued summon as
against the petitioner/accused in this case and no further
enquiry apart from the enquiry already held by way of
examination of witnesses of complainant and examined
documents was feasible in this case. The enquiry or
investigation under Section 202 Cr.P.C has to be done in all
those cases where the case is based only on oral evidence
and accused lives beyond jurisdiction of court verification
about presence of accused or about such other factors like
use of telephone etc is involved and the Magistrate in all
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 19 of 35
such cases mandatorily hold an enquiry either himself or
through police.”
This petition is gross abuse and misuse of process of law
10. In Rajesh Aggarwal v. State , 2010 (171) DLT 51 , this Court
noted that the High Court is flooded with petitions under Section
482 Cr.PC for challenging the summoning order passed by the
Magistrate under Section 138 of the Negotiable Instruments Act.
This Court further noted that the accused rush to the High Court on
mere passing of summoning order and are successful in halting the
proceedings before the Magistrate on one or the other ground while
the kind of defence raised by the petitioners is required to be raised
before the Magistrate at the very initial stage as per the law. The
object of the proceedings under Section 138 of the Negotiable
Instruments Act is that the cheques should not be used by persons
as a tool of dishonesty and once a cheque is issued by a person, it
must be honoured and if it is not honoured, the person is given an
opportunity to pay the cheque amount by issuance of a notice and if
he still does not pay, he must face the criminal trial and
consequences. However, the effort of some of the petitioners is to
teach a lesson to complainant for approaching court of law. The
amount of cheque is not paid despite demand notice and the
complainant is made to suffer further by prolonging the litigation
carrying it from one forum to other. In many cases, the petitioners
do have genuine defence, but, due to mis-reading of the provisions
of Negotiable Instruments Act and Cr.P.C., it is considered that the
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 20 of 35
only option available is to approach the High Court and on this the
High Court is made to step into the shoes of Metropolitan
Magistrate and examine their defence first and exonerate them.
This Court noted the reasons for delay in disposal of cases under
Section 138 of the Negotiable Instruments Act and held that the
accused cannot appear before the High Court without appearance
and disclosure of defence before the Magistrate. This Court laid
down the following principles relating to the proceedings under
Section 138 of the Negotiable Instruments Act:-
“1. Section 143 of the Negotiable Instrument Act:
Under Section 143 of the Negotiable Instrument Act, all
offences are to be tried in accordance with summary trial
provisions of Section 260 to 265 of Cr.P.C. In case of
conviction of the accused under Section 138, the Magistrate
can pass an order of imprisonment up to one year and fine
not exceeding `5,000/-. However, if the Magistrate finds
that the nature of the case warrants imprisonment exceeding
year, the Magistrate shall, after hearing the parties, pass a
reasoned order for hearing the case as a summons trial case
and recall the witnesses who may have been examined.
2. Section 145 of the Negotiable Instrument Act:
2.1 Complainant’s evidence to be by way of affidavit
Under Section 145 of the Negotiable Instrument Act,
the evidence of the complainant is to be given by way
of affidavit which shall be read in evidence.
2.2 Cognizance of the offence to be taken on the basis
of affidavit and documents
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 21 of 35
The affidavit and the documents filed by the
complainant along with complaint for taking
cognizance of the offence are good enough to be read
in evidence at both the stages i.e. pre-summoning
stage and the post summoning stage.
2.3 Complainant not required to examine himself twice
The complainant is not required to examine himself
twice i.e. once after filing the complaint and second
after summoning of the accused.
2.4 Complainant not required to be recalled unless a
specific order of Magistrate under Section 145(2)
of Negotiable Instruments Act
The complainant is not required to be recalled and re-
examined after summoning of accused unless the
Magistrate passes a specific order as to why the
complainant is to be recalled. Such an order is to be
passed on an application made by the accused or
under Section 145(2) of N.I. Act suo moto by the
Court.
3. Summary Procedure under Section 260 to 265
Cr.P.C.
3.1 In summary trial, after the accused is summoned, his
plea is to be recorded under Section 263(g) of Cr.P.C.
and his examination if any can be done by Magistrate
and a finding can be given by the Court under Section
263(h) of his examination. The same procedure is to
be followed by the Magistrates for offence of
dishonour of cheque and if during the course of
summary trial, it appears to the Magistrate that nature
of case was such that it was desirable to try it as a
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 22 of 35
summons trial, he has power to recall any witness who
has been examined and proceed to re-hear the case in
the manner provided in the Code.
3.2 Onus to prove that no offence is committed is on the
accused. If proviso (a), (b) and (c) to Section 138 of
N.I. Act are shown to have been complied with,
technically the commission of offence stands
completed. It is for the accused to show that no
offence could have been deemed to be committed by
him for some specific reasons and defences. He
cannot simply say "I am innocent" or "I plead not
guilty"
4. Procedure Prescribed Under Law:
4.1 Cognizance of offence upon examination of
complaint, affidavit and documents
The procedure as prescribed under law is that along
with complaint under Section 138 of N.I. Act, the
complainant should file affidavit of his evidence and
all necessary documents like dishonour memo,
returned cheque, notice of demand and then learned
Magistrate should scrutinize the complaint and
documents and if he finds that the affidavit and the
documents disclose dishonour of cheque issued by the
accused, issuance of a demand notice by the
complainant, non-payment of the cheque amount by
the accused despite notice, cheque return-memo of the
bank etc. and the complaint was filed within the
period of limitation, cognizance is to be taken and
notice of appearance of accused should be sent to the
accused.
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 23 of 35
4.2 Accused must disclose his defence on the first date
of hearing
4.2.1 In case the accused appears before the court of
Magistrate, the Court should ask him as to what was
his plea of defence. Normally, the first date is wasted
by the courts of Magistrate just by taking bail bond of
the accused and passing a bail order, while Sections
251 and 263(g) of Cr.P.C. provide that when the
accused appears before Magistrate in a summary trial
proceedings, the particulars of the offence, to which
he is accused, shall be stated to him and he should be
asked whether he pleads guilty or he has any defence
to make. This is the mandate of Section 143 of N.I.
Act, which provides summary trial of offence in terms
of Cr.P.C.
4.2.2 Under Section 263(g) of Cr.P.C., the court has to
record the plea of the accused and his examination. It
is thus obvious that in a trial of an offence under
Section 138 of N.I. Act, the accused cannot
simplicitor say "I plead not guilty" and wants to face
trial.
4.2.3 Since offence under Section 138 of N.I. Act is a
document based technical offence, deemed to have
been committed because of dishonour of cheque
issued by the accused or his company or his firm, the
accused must disclose to the Court as to what is his
defence on the very first hearing when the accused
appears before the Court.
4.3 Accused cannot appear before High Court without
appearance and disclosure of defence before the
Magistrate
4.3.1 If the accused does not appear before the Court of
Magistrate on summoning and rather approaches High
Court, the High Court has to refuse to entertain him
and ask him to appear before the Court of Magistrate
as the High Court cannot usurp the powers of
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 24 of 35
Magistrate and entertain a plea of accused why he
should not be tried under Section 138.
4.3.2 The plea as to why he should not be tried under
Section 138, is to be raised by the accused before the
Court of Magistrate under Section 251 and under
Section 263(g) of Cr.P.C. Along with his plea, he can
file necessary documents and also make an
application, if he is so advised, under Section 145(2)
of N.I. Act to recall the complainant to cross-examine
him on his plea of defence. However, only after
disclosing his plea of defence he can make an
application that the case should not be tried summarily
but as a summons trial case. This application must
disclose the defence of the accused and the reasons
why he wants the case to be tried as a summons trial.
4.4 Onus to prove the defence is on the accused under
Section 106 of the Evidence Act, 1872 and it is not
violative of Article 21 of the Constitution
4.4.1 An argument is raised that the accused, under Article
21 of Constitution of India, has a right of silence in a
criminal trial and therefore he cannot be forced to
disclose his defence. This argument is misconceived
in view of Section 106 of Indian Evidence Act. Since
an offence under Section 138 of N.I. Act is technical
in nature and defence which an accused can take are
inbuilt, like the cheque was given without
consideration, the accused was not Director at that
time, accused was a sleeping partner or a sleeping
Director, cheque was given as a security etc. etc., the
onus of proving these defences is on the accused
alone, in view of Section 106 of Evidence Act. Since
the mandate of Legislature is trial of such cases in a
summary manner, the evidence already given by the
complainant by way of affidavit is sufficient proof of
the offence and this evidence is not required to be
given again in terms of Section 145(1) of N.I. Act and
has to be read during the trial.
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 25 of 35
4.4.2 The witnesses i.e. the complainant or other witnesses
can be recalled only when accused makes an
application and this application must disclose the
reason why accused wants to recall the witnesses and
on what point witness is to be cross examined.
4.4.3 When it is within the special knowledge of the
accused as to why he is not to face trial under Section
138 N.I. Act, he alone has to take the plea of defence
and burden cannot be shifted to complainant. There is
no presumption that even if an accused fails to bring
out his defence, he is still to be considered innocent.
4.4.4 If an accused has a defence against dishonour of the
cheque in question, it is he alone who knows the
defence and responsibility of spelling out this defence
to the court and then proving this defence is on the
accused.
4.4.5 The proper procedure to be followed by Magistrate is
that soon after summoning, the accused must be asked
to disclose his defence and his plea should be
recorded.
4.4.6 Where an accused takes no defence and simply says "I
am innocent", there is no reason for the Magistrate to
recall the complainant or witnesses during summary
trial and the evidence already given by the
complainant has to be considered sufficient and the
trial court can ask the accused to lead his evidence in
defence on the plea of innocence as the evidence of
the complainant is already there.
4.5 In a summary trial, a complainant or his witness
cannot be recalled in the court for cross
examination only for the sake of pleasure
4.5.1 Once the complainant has brought forward his case by
giving his affidavit about the issuance of cheque,
dishonour of cheque, issuance of demand notice etc.,
he can be cross examined only if the accused makes
an application to the court as to on what point he
wants to cross examine the witness(es) and then only
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 26 of 35
the court shall recall the witness by recording reasons
thereto.
4.5.2 In most of the cases, the court of Magistrate may not
feel necessary that a sentence of imprisonment of
more than one year should be inflicted. Unless the
court, for reasons to be given, considers that the
punishment in a case should be more than one year,
the court cannot deviate from the procedure of
summary trial and cannot ask the accused to appear
again and again and defeat the very purpose of
summary trial. Section 143 and 145 of N.I. Act were
enacted by the parliament with the aim of expediting
trial in such cases. The provisions of summary trial
enable the respondent to lead defence evidence by
way of affidavit and documents. Thus an accused who
considers that he has a tenable defence and the case
against him was not maintainable, he can enter his
plea on the very first day of his appearance and file an
affidavit in his defence evidence and if he is so
advised, he can also file an application for recalling
any of the witnesses for cross examination on the
defence taken by him.
4.6 Service of summons on the accused
4.6.1 Under Section 144 of N.I. Act, service of accused can
be effected through registered post/speed post or by
courier service and if the accused refuses to receive
the summons, he can be declared served and court can
take coercive measures for entering appearance of the
accused. Chapter VI of Cr.P.C., under Section 62, 63
and 64, provides how summons are to be served on
accused persons by police. Section 65 thereof provides
that if service cannot be effected in the manner as
provided in Section 62, 63 or 64 of Cr.P.C., the
serving officer shall affix one copy summon on some
conspicuous part of his house or area in which the
accused resides and the court after making such
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 27 of 35
inquiries may declare that the summons have been
duly served. Thus service by affixation is a valid mode
of service under criminal law and wherever the
accused is evading his service, the court of Magistrate
should direct service through affixation as provided
under Section 65 of Cr.P.C. and in case the accused
does not appear the court is at liberty to take steps for
coercive appearance.
4.6.2 An issue arises where there are many accused persons
in a case and some of them are not appearing, should
the court proceed against those who are appearing or
should wait for the completion of service of all the
accused? I consider that summary trial leaves no
option to the court. The whole purpose of summary
trial shall stand defeated if the court of Magistrate tells
the accused persons, who have been served, to come
to the court repeatedly till the other accused are
served. The plea of the accused is to be recorded on
the day of his appearance under the summary trial and
if that accused gets his plea recorded, he is at liberty to
lead evidence in support of his plea and the court
cannot tell him to keep coming repeatedly either in
person or through counsel due to non appearance of
other accused persons. The court, in such a case, asks
him to disclose his defence and to prove his defence.
In case court feels that the case should not be tried
summarily and all the accused persons must necessary
be tried together, then alone the court should ask the
accused to wait but if the accused/respondent has a
valid defence to show that he need not face trial
because of a specific defence and he was prepared to
lead evidence to this effect, he should be directed to
lead evidence in support of his plea.
4.7 Settlement by the accused
Along with the notice of appearance, in view of the
judgment of Supreme Court in Damodar S. Prabhu
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 28 of 35
v. Sayed Babalal H., AIR 2010 SC 1907, the court of
Magistrate should also inform the accused that in case
he wants to make the payment of the cheque amount,
he should either in person or through his counsel or
representative sent the cheque amount, either in cash
or through draft so that the same can be paid to the
complainant and the case would thus come to an end.
The accused also has liberty to make application on
the very first day that he wants to compromise and in
terms of the judgment given by Supreme Court in
Damodar S. Prabhu (Supra) the court should dispose
of the case by asking the accused to pay the cheque
amount to complainant. The court should also bring to
the notice of accused that incase he does not
compromise at that stage, and if he enters compromise
at subsequent stages then he will have to pay costs in
terms of judgment of Supreme Court.
5 Conclusion
The summary trial procedure to be followed for
offences under Section 138 of Negotiable Instrument
Act, 1881 would thus be as under:
5.1 On the day complaint is presented, if the complaint is
accompanied by affidavit of complainant, the
concerned Magistrate 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.
5.2 If the accused appears, the Magistrate shall ask him to
furnish bail bond to ensure his appearance during trial
and ask him to take notice under Section 251 Cr.P.C.
and enter his plea of defence and fix the case for
defence evidence, unless an application is made by an
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 29 of 35
accused under Section 145(2) of N.I. Act for recalling
a witness for cross examination on plea of defence.
5.3 If there is an application under Section 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. …”
10.1 These cases are squarely covered by the aforesaid judgment
and the petitioners are guilty of gross abuse and misuse of the
process of law as the petitioners did not disclose their defence
before the learned Metropolitan Magistrate in terms of the
judgment of this Court in Rajesh Aggarwal (supra). That apart, the
petitioners have also not chosen to disclose their defence before
this Court.
Imposition of Costs
11. Imposition of actual, realistic or proper costs and or ordering
prosecution would go a long way in controlling the tendency of
introducing false pleadings and forged and fabricated documents
by the litigants. The cost should be equal to the benefits derived by
the litigants, and the harm and deprivation suffered by the rightful
person so as to check the frivolous litigations and prevent the
people from reaping a rich harvest of illegal acts through Court.
The costs imposed by the Courts must be the real costs equal to the
deprivation suffered by the rightful person and also considering
how long they have compelled the other side to contest and defend
the litigation in various courts. In appropriate cases, the Courts
may consider ordering prosecution otherwise it may not be possible
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 30 of 35
to maintain purity and sanctity of judicial proceedings. The parties
raise fanciful claims and contests because the Courts are reluctant
to order prosecution. The relevant judgments in support of this
preposition are as under:-
11.1 In Ramrameshwari Devi v. Nirmala Devi , (2011) 8 SCC
249 , the Supreme Court has held that the Courts have to take into
consideration pragmatic realities and have to be realistic in
imposing the costs. The relevant paragraphs of the said judgment
are reproduced hereunder:-
“52. … C. Imposition of actual, realistic or proper
costs and or ordering prosecution would go a long
way in controlling the tendency of introducing
false pleadings and forged and fabricated
documents by the litigants. Imposition of heavy
costs would also control unnecessary
adjournments by the parties. In appropriate cases
the courts may consider ordering prosecution
otherwise it may not be possible to maintain
purity and sanctity of judicial proceedings. …
xxx xxx xxx
54. While imposing costs we have to take into
consideration pragmatic realities and be realistic
what the Defendants or the Respondents had to
actually incur in contesting the litigation before
different courts. We have to also broadly take
into consideration the prevalent fee structure of
the lawyers and other miscellaneous expenses
which have to be incurred towards drafting and
filing of the counter affidavit, miscellaneous
charges towards typing, photocopying, court fee
etc.
55. The other factor which should not be
forgotten while imposing costs is for how long the
Defendants or Respondents were compelled to
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 31 of 35
contest and defend the litigation in various courts.
The Appellants in the instant case have harassed the
Respondents to the hilt for four decades in a totally
frivolous and dishonest litigation in various courts.
The Appellants have also wasted judicial time of the
various courts for the last 40 years.
56. On consideration of totality of the facts and
circumstances of this case, we do not find any
infirmity in the well reasoned impugned
order/judgment. These appeals are consequently
dismissed with costs, which we quantify as Rs.
2,00,000/- (Rupees Two Lakhs only). We are
imposing the costs not out of anguish but by
following the fundamental principle that wrongdoers
should not get benefit out of frivolous litigation.”
(Emphasis supplied)
11.2 In Maria Margarida Sequeria Fernandes v. Erasmo Jack
de Sequeria, 2012 (3) SCALE 550, the Supreme Court held that
heavy costs and prosecution should be ordered in cases of false
claims and defences as under:-
“85. This Court in a recent judgment in
Ramrameshwari Devi and Ors. (supra) aptly
observed at page 266 that unless wrongdoers are
denied profit from frivolous litigation, it would be
difficult to prevent it. In order to curb uncalled for
and frivolous litigation, the Courts have to ensure
that there is no incentive or motive for uncalled for
litigation. It is a matter of common experience that
Court's otherwise scarce time is consumed or more
appropriately, wasted in a large number of uncalled
for cases. In this very judgment, the Court provided
that this problem can be solved or at least be
minimized if exemplary cost is imposed for
instituting frivolous litigation. The Court observed at
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 32 of 35
pages 267-268 that imposition of actual, realistic or
proper costs and/or ordering prosecution in
appropriate cases would go a long way in controlling
the tendency of introducing false pleadings and
forged and fabricated documents by the litigants.
Imposition of heavy costs would also control
unnecessary adjournments by the parties. In
appropriate cases, the Courts may consider
ordering prosecution otherwise it may not be
possible to maintain purity and sanctity of
judicial proceedings. ”
(Emphasis supplied)
11.3 In Padmawati v. Harijan Sewak Sangh , 154 (2008) DLT
411 , this Court imposed costs of Rs.15.1 lakhs and noted as under:
“6. The case at hand shows that frivolous defences
and frivolous litigation is a calculated venture
involving no risks situation. You have only to
engage professionals to prolong the litigation so as to
deprive the rights of a person and enjoy the fruits of
illegalities. I consider that in such cases where Court
finds that using the Courts as a tool, a litigant has
perpetuated illegalities or has perpetuated an illegal
possession, the Court must impose costs on such
litigants which should be equa32l to the benefits
derived by the litigant and harm and deprivation
suffered by the rightful person so as to check the
frivolous litigation and prevent the people from
reaping a rich harvest of illegal acts through the
Courts. One of the aim of every judicial system has
to be to discourage unjust enrichment using Courts
as a tool. The costs imposed by the Courts must in
all cases should be the real costs equal to deprivation
suffered by the rightful person.
xxx xxx xxx
9. Before parting with this case, I consider it
necessary to pen down that one of the reasons for
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 33 of 35
over-flowing of court dockets is the frivolous
litigation in which the Courts are engaged by the
litigants and which is dragged as long as possible.
Even if these litigants ultimately loose the lis, they
become the real victors and have the last laugh.
This class of people who perpetuate illegal acts by
obtaining stays and injunctions from the Courts
must be made to pay the sufferer not only the
entire illegal gains made by them as costs to the
person deprived of his right and also must be
burdened with exemplary costs. Faith of people in
judiciary can only be sustained if the persons on
the right side of the law do not feel that even if
they keep fighting for justice in the Court and
ultimately win, they would turn out to be a fool
since winning a case after 20 or 30 years would
make wrong doer as real gainer, who had reaped
the benefits for all those years. Thus, it becomes
the duty of the Courts to see that such wrong
doers are discouraged at every step and even if
they succeed in prolonging the litigation due to
their money power, ultimately they must suffer
the costs of all these years long litigation. Despite
settled legal positions, the obvious wrong doers,
use one after another tier of judicial review
mechanism as a gamble, knowing fully well that
dice is always loaded in their favour, since even if
they lose, the time gained is the real gain. This
situation must be redeemed by the Courts.”
(Emphasis supplied)
Conclusion
12. There is no merit in these petitions. These petitions amount
to gross abuse and misuse of process of law. The petitioners have
succeeded in delaying the complaints before the Metropolitan
Magistrate for more than two years. The petitions are consequently
dismissed with cost of Rs.30,000/- each. The cost be paid by the
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 34 of 35
petitioners to the respondent within four weeks. The Metropolitan
Magistrate shall resume the proceedings forthwith and shall
endeavour to complete the trial within six months. The parties
th
shall appear before the Metropolitan Magistrate on 18 November,
2013.
13. Copy of this judgment be sent to learned counsels for both
the parties.
14. LCR be returned back forthwith.
15. Dasti.
J.R. MIDHA, J
NOVEMBER 01 , 2013
Crl. M.C. Nos. 3669/2011 and 602-604,606/2012 Page 35 of 35