Full Text
HIGH COURT OF DELHI
Order reserved on :08.12.2022
Order pronounced on : 12.12.2022
JUDGMENT
1. Sanjay Shandilya s/o. Sh. Mishri Lal Shandilya r/o. H.No. J-68, Ground Floor, Ashok Vihar, Phase-I, Delhi M.No. 9212150206 Email ID: sanjay_cysystem@ yahoo.com
2. Akash Raj Gupta S/o. Sh. Raj Kumar Gupta R/o. 95/35, Kath Mandi, Naya Parrow, Rohtak, Haryana. M.No. 9873077192..... Petitioners Through: Mr. Sanjay Rathi and Mr. Deepak Khatri, Advs.
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Kawaljeet Singh Duggal s/o. Sh. Raghubir Singh R/o. J-03, Dhawandeep Building, Jantar-Mantar Road, New Delhi-110001
3. M/s. C.P. Systems Pvt. Ltd. (Proforma respondent) 501, Krishna Apra Building Netaji Subhash Palace, Pitampura, New Delhi-110034 M.No. 9212150206 Email ID:sanjay_cpsystem@yahoo.com..... Respondents Through: Ms.Richa Dhawan,Addl.PP for State CORAM: HON'BLE MS.
JUSTICE POONAM A. BAMBA POONAM A. BAMBA, J.:
1.0 Vide this petition filed u/S. 482 of Code of Criminal Procedure, 1973 („Cr.PC‟ in short), the petitioners have sought:-
(i) setting aside of order dated 29.04.2022 („impugned order‟ in short), passed by Ld. MM (N.I. Act)-01, SW/DWK/ND in C.C. No. 44350/2019 („complaint‟ in short), titled as Kawaljeet Singh Duggal vs. C.P. Systems Pvt. Ltd. & Ors., whereby the petitioner‟s application under section 322 Cr.PC was dismissed; and
(ii) dropping of the proceedings against the petitioners under section 138 of Negotiable Instruments Act („N.I.Act‟ in short) in the aforesaid complaint.
2.0 Briefly stating, the facts relevant for disposal of this petition are that:
(i) Kawaljeet Singh Duggal/ respondent no. 2 herein through his
Special Power of Attorney („SPA‟ in short)/Authorized Representative Sh. Sanjeev Malik Chand filed the complaint under Section 138 N.I. Act against the respondent no. 3 i.e. M/s. C.P. Systems Pvt. Ltd. and its directors, namely, Sanjay Shandilya (petitioner no. 1 herein) and Vikas Ahuja, Akash Rai Gupta (petitioner no. 2 herein) and Suchan Jamkhandi Sunil;
(ii) vide order of Ld. MM dated 11.12.2019, the accused persons including the petitioners herein were summoned for 13.02.2020;
(iii) the accused no. 2 & 4/the petitioners herein filed an application u/s. 322 Cr.PC for review of summoning order dated 11.12.2019 and for dropping of the proceedings u/s. 138 N.I. Act against them;
(iv) the said application was dismissed by the Ld. Magistrate vide order dated 29.04.2022/ the impugned order, observing that the Ld. MM does have criminal and territorial jurisdiction to proceed in the matter, rejecting the petitioner‟s plea of lack of jurisdiction against them.
3.0 The petitioners have challenged the impugned order dated 29.04.2022, inter alia, on the grounds that:
(i) the Special Power of Attorney holder Sh. Sanjeev Malik Chand had no authority to file the complaint u/s. 138 N.I. Act against the petitioners as the Special Power of Attorney („SPA‟ in short), on the basis of which he filed the complaint on behalf of Kawaljeet Singh Duggal, did not empower him to implead the petitioners herein;
(ii) the Ld. Magistrate failed to appreciate that as the said Special
Power of Attorney only mentioned that Sh. Sanjeev Malik Chand could initiate, file, institute and do other things “in the matter of Kawaljeet Singh Duggal Vs. C.P. Systems Pvt. Ltd.”, it did not authorize the SPA holder to implead the petitioners herein as accused in the aforesaid complaint; and no such proceedings could have been continued by him before the Ld. Trial Court;
(iii) Ld. Magistrate failed to appreciate that when the SPA holder did not have authority to implead the petitioners/accused persons and to continue such proceedings, the issuance of summons by the Ld. MM was without jurisdiction, in view of the law as laid down in TimbloIrmaos Ltd. Margo vs. Jorge Anibal Matos Sequeria and Ors, 1977 AIR 734. 3.[1] During arguments, with respect to scope of power of attorney, the Ld. Counsel for the petitioners also referred to the judgment in Jimmy Jahangir Madan vs. Bolly Cariyappa Hindley (Dead) by LRs, (2004) 12 SCC 509.
4.0 On the other hand, Ld. counsel for the respondent no. 2 sought dismissal of this petition with heavy costs pleading that it lacks merits and has been filed only to harass the complainant and delay the proceedings before the Ld. Trial Court. It is submitted that the application under Section 322 Cr.PC filed by the petitioner was not maintainable and was rightly dismissed by the Ld. MM. Even the present petition is not maintainable. 4.[1] Ld. counsel for the respondent no. 2 also submitted that the respondent no. 3 – M/s. C.P. Systems Pvt. Ltd. is a company, a juristic person and in terms of Section 141 N.I. Act, every person, who at the time the offence was committed, was in charge of/responsible to the company for conduct of its business shall be deemed to be guilty of the offence and is liable to be prosecuted u/S. 138 N.I. Act. Thus, the SPA holder was well within his rights to proceed against M/s. C.P. Systems Pvt. Ltd. and its directors/the petitioners herein, though were not specifically named in the SPA. Thus, the Ld. MM has rightly proceeded in the matter and summoned the petitioner. 4.[2] Ld. counsel also submitted that even otherwise, the petitioners have also filed a petition for quashing of summoning order/proceedings u/s. 138 N.I. Act on 27.10.2021 on same grounds, which is pending before the co-ordinate bench of this court. This fact is not disputed by Ld. counsel for the petitioners. 4.[3] Ld. counsel for the respondent no. 2 argued that the judgment in Jimmy Jahangir Madan’s case (supra) as relied upon by the petitioners, is not applicable in the present case, facts being very different.
5.0 I have duly considered the submissions made by both the sides.
6.0 It may be mentioned that the Ld. MM took cognizance and summoned the petitioners herein in the respondent no. 2‟s complaint u/S. 138 N.I.Act, vide order dated 11.12.2019. Pursuant thereto, the petitioners filed an application u/s. 322 Cr.PC for revisiting of the said order pleading lack of jurisdiction with the Ld. MM. The petitioners‟ application u/S. 322 Cr.PC was dismissed by the Ld. MM vide impugned order dated 29.04.2022, under challenge in the present petition. 6.[1] Relevant portion of the impugned order reads as under: “29.04.2022 ……… …… Put up for notice framing against No. 2 and 4 on 31.05.2022 ….. Vide this Order, I shall dispose off the application moved by accused no.2 and 4 under Section 322 Cr.P.C. to review the Order dated 11.12.2019. Counsel for accused argued that as Ex.CW1/A, SPA holder Sanjeev Mallick has been duly authorized to proceed against M/s. C.P. System Pvt. Ltd. only and not against any other person. ……. He further argued that in view of directions laid down by Hon’ble Supreme Court of India in case of Expeditious Trial of case under Section 138 of N.I. Act, 1881 in Suo moto writ petition (Crl.) No. 2/2020 “The Trial Court has power to revisit the order of issue of process it if brought to the Court’s notice that it lacks jurisdiction to try the complaint”.............. This court is of the view that there is no question of lack of jurisdiction. The court of undersigned does have Criminal and Territorial jurisdiction to proceed in the present matter. Therefore, the argument raised by accused’s counsel that the present case cannot be proceeded against accused no. 2 and 4 on ground of lack of jurisdiction is not justifiable. In view of the above, the present application stands dismissed.”
7.0 Before dealing with the petitioners‟ contentions, reference may be made to Section 322 Cr.PC, which reads as under:
8.0 In view of the above, the impugned order does not call for any interference.
9.0 Petition is accordingly dismissed.
10.0 Pending applications, if any, stand closed.