ORG Informatics Ltd. v. State & Anr.

1. Whether Reporters of local papers may be allowed to see the judgment?. •

2. To be referred to the Reporter or not 3: Whether the judgment should be reported' in the Digest ? ' •' '• ¥„K. SHALI, J. forall, } 1..This is a criminal misc.' main petitions filed under Section 482 Cr.P.C. for setting aside the order dated 30.09.2010 •..and 12.01.2011 passed by the learned Metropolitan.... Magistrate in complaint case no. 812/20.10 and the order dated 18.05.2011 passed by the learned Additional Sessions Judge in criminal revision petition no. 34/2011. > CrI. M.C.,No.953/2011 " •,. Page 1 of10 -A.2. It may he pertinent here to mention that" criminal misc. main cases bearing no. 2410 to 2422 are.also between the. same parties challenging the said three orders except the fact- that they are passed in different complaint cases. This case will be treated as a lead case giving the reasons for the dismissal of the petition' which would be equally • applicable to the othei: petitions. 3- The brief facts of the case are that the,respondent NO. 2/IBM India Pvt. Ltd. filed a complaint under Section 138' of the Negotiable Instrument - Act against the present petitioner, ORG Informatics Ltd. and its three Directors, namely, Ajoy Khandheria, Rajesh Suri and Sushil Kumar who are the petitioner nos. 2 to 4. • The petitioner. no. 1/company had allegedly issued cheque for a sum of Rs.25,00,000/- to the respondent no. 2 • which was. dishonoured on presentation. It was also alleged that the petitioner nos. 2 to 4 were the directors of petitioner no. • 1/company and weriC responsible for the conduct of the business of the petitioner company,' and therefore, •^ • vicariously liable for the commission of the offence. The CrI. M.C. No.953/2011 respondent no. 2 complied mth the statutory provisions of thd issuance ofdemand notice etc. The same is alleged to \ have not been complied with by 'the petitioners, accordingly, the aforesaid complaint was filed agamst the- • • present petitioners by the respondent no.2. Along.with the complaint an affidavit was filed by way of pre summoning evidence and the learned Magistrate issued notice to the. present petitioners. On appearance, notice under Section 251 Cr.P.C was given to them through their counsel on 08.04.2010 and thereafter the matter was adjourned to 12.05.20I0^for prosecution evidence. • 4. On 12.05.2010 the Presiding Officer was on leave and the matter was adjourned to 08.07.2010. On 08.07.2010, the. respondent no. 2 made a statement that the affidavit by way of.evidence filed by it at the pre summoning stage may be treated as post summoning evidence also. The matter. • • was adjourned for mediation which did not yield any result. Thereafter the matter was adjourned to 23.09.2010 for the purpose of cross examination of the respondent ^ nos.2's witnesses. On 30.09.2010, the case was CrI. M.C. No.953/2011 Page 3of 10 X >, transferred to Ms. ' Surbhi Sbarma Vats'. The learned -Magistrate who noted that in ^^iew of the directions passed by the High Court of Delhi in the judgmerit titled RajesSi Agarwal Vs. State & Asiffo 171 (2010) DLT 51, Crl. Misc. No. 1996/2010, the matter shall be proceeded as summary. trial. ' Accordingly, the matter was adjourned to 12.01.2011 for the defence evidence.

5. On 12.01.2011, the learned Metropolitan Magistrate noted that a perusal of the record show that the complainants evidence has not yet been started and on account of an inadverterit mdstake the matter was adjourned for defence. evidence- -.It was observed that in terms of the judgment of this Court in Rajesh Agarwal jSuipra) read with section 143 of the Negotiable Instrument Act and Section 263(g) Cr.P.C. the defence of the accused has; to be recorded, and accordingly, the matter was adjourned to 17.03.2011.. • • -., 1. " 6.; The petitioners feeling aggrieved by the orders dated • 30.09.2010 and 12.01.2011 filed a revision petition before ^ • the Sessions Court which was dismissed. ' Cii. M.C. No.953/2011 - / y •y

7. The contention of the learned counsel for the petitioners before the revisionist court was tWo-fold, which was sought, to be raised before this Court also:,..

8. The first contention raised before the learned Additional Sessions Judge was that even after having proceeded to record the evidence of the respondent/complainant after framing the notice shows the clear intention of the learned Metropolitan Magistrate- that he was to follow the procedure prescribed for summon trial offence under.[1] Section 251 to 259 Cr.P.C. and having done so the Magistrate "could not have reviewed his /own- order by passing the impugned order dated 30.09.2010 and 12.01.2011 observing that the case shall be proceeded as, summary trial. It was contended by the learned counsel for the petitioners that in terms of the judgment,of the. Apex Court in Adalat Prasad Vs, Rooplal Jiuidal & Ors. (2007),, 7 see 338, the learned Magistrate 'Could not have reviewed his owri order.

9. The second submission of the learned.c'ounsel for the y petitioners is that by the impugned order, the learned Crl, M.C. No.953/2011 • Magistrate has directed the complainant to file his statement' of defence. It.was contended that even though it was assumed that the Magistrate has to follow the summary trial procedure in terms of, the Rajesh. Agarwal case jSuiipral, ' the same could not be followed retrospectively as the learned Magistrate had already proceeded to deal with the case by following the procedure of a summons trial case. Both these pleas were negated by the learned Additional Sessions Judge by a detailed order and it was observed by him that no prejudice was to • be caused to the rights of the present petitioners by following the directions given by the High Court of Delhi in Rajesh,Agarwal case jsiipra| and that the petitioners were at liberty to file a case under Section 145(2) of the Negotiable Instrument Act for seeking the 'recall of the witnesses for the purpose of examination of their plea of defence. The petitioners have preferred the present petition by invoking Section 482' Cr.P.C. as they were still not satisfied.,.' • Crl. M.C. No.953/2011- • '

10. I have heard the learned counsel for the petitioners and have also gone through the two judgments that were relied upon by the petitioners in respect of his submissions which were made by him before the Sessions Court. I ' have also gone through the impugned orders.

11. At the, outset, it may be pertinent here to mention that although Section 482 Cr.P.C. starts with a non obstante clause and reiterates powers of the High Court to pass any order to prevent the abuse of process of law or to pass any such order to secure the ends of justice, is not conditioned or curtailed by any provision but still Court has the discretion to see whether the invocation of Section 482 Cr.P.C. is justified or not. It means that even if a party, has preferred a revision petition under Section 397,Cr.P.C., he can- still prefer a petition under-Section 482 Cr.P.C. if the ingredients for the application of Section 482 Cr.P.C. are satisfied, namely, the fact that the situation is such which would warrant the interference, by the High Court for the purpose of preventing the abuse of processes of law or to secure the ends of justice.. In the instant case, I do CrI. M.C. No.953/2011 ', Page^JoflO V V V- V' not'find'that there is any possibility of interference by the High Court as there is no abuse of processes of law nor does any order require to be passed that is contrary to the one which has been passed by the Sessions Court which directed the petitioners to seek a recall of witnes'ses under-j V I Section 145 (2) of the Negotiable Instrument -Act for the purpose of establishing his defence. It may also be pertinent here to mention that Section 397 sub clause 3 of Cr.P.C. prohibits, a party from filing a second revision' petition. The present petitioners have already chosen to file a petition before the Sessions Court and having done so, they are prohibited from filing a second revision petition even though it has been termed as a petition under section 482 Cr.P.C. Having said feo, a perusal of the provisions under Section 143 read with Section 145 of the Negotiable Instrument Act would make, it amply clear that the concern of the legislature, while incorporating Section 143 and 145 by way of amendment w.ef. 06.02.2003, was essentially to curtail the delay which was occurring in the disposal of these complaints under Section 138 of..the Negotiable Ci-r. M.C. No.953/2011 •, ' PageSoflO r Instrument Act. The mandate of the law was that the case should be tried summarily as far as possible and further, the trial should he conducted on day to day basis andpreferably be disposed of within a period of sbc months. In the instant case, the entire effort of the petitioners seems to be to scuttle the trial and indulge in dilatory tactics. The petitioners had already brought the matter before the High Court earlier in the first round and. when, it was • disposed of by Hon'ble Mr. Justice A. K. Pathak oh' 29.09.2010. In the present case also the learned Additional Sessions Judge has specifically observed that no prejudice, is likely to be caused to. the petitioners in the, the trial proceeds according to summary procedure and the only thing that is to be done by the present petitioner is to file their statement of defence and then seek a recall of the complainant/respondent witness for the purpose of crossexamination as the complainant • has already made a statement that the evidence which has been filed by way of affidavit at the stage of pre summoning may also be treated as evidence at the stage of post summoning and therefore, Crl. M.C. No.953/2011 \V j in considered view the only purpose of filing the present • petition is to indulge in dilatory tactics, which cannot be permitted by the Court. The plea that the learned Trial Court has reviewed its own order or that the judgment title Rajesli Agarwal case. (Supral has been applied retrospectively have already been dealt, with by the Sessions Court. I feel that it need not be gone into afresh by this Court.

12. For the reasons mentioned above, I do not find any merit in the petition and' accordingly, all the present petitions are accordirigly dismissed.

13. Dasti. Amguast 01, 2011 KP SHALI, Jo