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2024 DIGILAW 1103 (ALL)

Shashibala Agrawal v. State of Uttar Pradesh

2024-04-23

ARUN KUMAR SINGH DESHWAL

body2024
JUDGMENT : (Arun Kumar Singh Deshwal, J.) : 1. Heard Sri Sunil Kumar, learned counsel for the applicant and Sri Rajeev Kr. Singh, learned A.G.A. for the State. 2. The instant application has been filed seeking quashing of the entire proceeding of Complaint Case No. 5449 of 2017 (Nimesh Agrawal vs. M/s Anupam Omerian Infrastructure Pvt. Ltd. and others), u/s 138 N.I. Act, P.S. Hari Parwat, District Agra, pending before Additional Court No.3, Agra and also the impugned order dated 28.2.2024 passed by Additional Sessions Judge, Court No.1, Agra, in Criminal Revision No. 769 of 2023 (Nimesh Agrawal vs. State of U.P.). 3. The facts giving rise to the present case are that opposite party No.2 had filed a complaint case No. 5449 of 2017, impleading the company M/s Anupam Omerian Infrastructure Pvt. Ltd. as well as two of its directors including the present applicant as respondents-accused, with the allegation that the cheque of Rs.11,80,000/-bearing No. 044298 dated 19.4.2017, signed by the applicant was handed over to opposite party No.2 in discharge of liability on behalf of her company and on bouncing of the same on 20.5.2017, the statutory notice dated 22.5.2017 was sent to all the respondents-accused including the present applicant which was served upon them on 13.6.2017. Thereafter, despite receiving the statutory notice, the accused respondents, including the present applicant, did not pay the cheque amount. Learned A.C.J.M., Court No.12, Agra, on considering the aforesaid complaint and the statement and other documents filed in support of the complaint, issued a summon against the applicant by order dated 9.11.2017. In that order, it was clearly mentioned that the present applicant issued the cheque in question, therefore, instead of summoning the company, i.e. M/s Anupam Omerian Infrastructure Pvt. Ltd., the present applicant was summoned being its director and signatory of the cheque in question. 4. Thereafter, that case remained pending from 2017 to 2023. However, the present applicant did not appear before the court, despite the issuance of summons, bailable warrant and non-bailable warrant by the court concerned. The order sheet of this case also shows that since 10.3.2022, opposite party No.2/complainant did not appear before the concerned court; therefore, by order dated 27.6.2023, the complaint was dismissed u/s 204 Cr.P.C. for want of prosecution. Thereafter, the complainant filed Criminal Revision No. 769 of 2023 before Sessions Judge, Agra, against the order dated 27.6.2023. The order sheet of this case also shows that since 10.3.2022, opposite party No.2/complainant did not appear before the concerned court; therefore, by order dated 27.6.2023, the complaint was dismissed u/s 204 Cr.P.C. for want of prosecution. Thereafter, the complainant filed Criminal Revision No. 769 of 2023 before Sessions Judge, Agra, against the order dated 27.6.2023. During revision, the respondents-accused, including the present applicant, were also heard, and the revisional court, by the order dated 28.2.2024, allowed the revision by setting aside the order dated 27.6.2023 and directed the concerned court to decide the case on merit. Feeling aggrieved by the order dated 28.2.2024 passed by the revisional court, the applicant has filed the present application. In the present application, the applicant challenged the order of the revisional court dated 28.2.2024 and the criminal proceeding of Complaint Case No. 5449 of 2017. 5. The contention of learned counsel for the applicant is that the impugned proceeding is bad in the eyes of law because while passing the summoning order, the court below did not summon the company, despite the fact that the company was also impleaded as accused-respondent and in absence of the company, the signatory director cannot be summoned as the cheque in question was issued on behalf of the company and the same is barred by Section 141 N.I. Act. The second contention of learned counsel for the applicant is that the impugned order passed by the revisional court is also bad in the eyes of law because against the dismissal of a complaint for want of prosecution, an appeal lies and not the revision as dismissal of the complaint amounts to acquittal u/s 256 Cr.P.C. which is appealable order u/s 378(4) Cr.P.C. 6. Per contra, learned A.G.A. has vehemently opposed the contention of learned counsel for the applicant and submitted that the applicant, apart from being the director, is also the signatory of the cheque in question, therefore, she was rightly summoned on behalf of the company. It is also submitted by the learned A.G.A. that the order passed by the revisional court is absolutely correct as the revisional authority has jurisdiction to correct any illegal order which amounts to miscarriage of Justice. The order was passed by the learned Magistrate u/s 204 Cr.P.C. for want of prosecution and no order for acquittal of the applicant was passed u/s 256 Cr.P.C. 7. The order was passed by the learned Magistrate u/s 204 Cr.P.C. for want of prosecution and no order for acquittal of the applicant was passed u/s 256 Cr.P.C. 7. After hearing the contention of learned counsel for the parties and on perusal of the record, it appears that the present applicant did not appear before the court below from 2017 to 2023 despite the issuance of summons, bailable warrant, and non-bailable warrant by the concerned Magistrate. She, for the first time, appeared before the revisional court. It also appears from the impugned order that the applicant did not raise the objection to the maintainability of revision before the revisional court. She continued to participate in the proceeding of revision. Only after the decision of revision in favour of opposite party No.2, she for the first time challenged the order of the revisional court on the ground that the revisional court has no jurisdiction to decide the revision as the order of the learned Magistrate was appealable u/s 378(4) Cr.P.C. 8. From the perusal of the order of the learned Magistrate dated 27.6.2023, it is clear that the complaint was dismissed for want of prosecution, and no specific order for acquitting the applicant as required u/s 256 Cr.P.C. was passed. Even otherwise, the order dated 27.6.2023 was not passed on merit, and that order could have been recalled by the same court in view of the law laid down by the Apex Court in the case of Vishnu Agarwal vs. State of Uttar Pradesh and another; (2011) 14 SCC 813 . However, the complainant/opposite party No.2 chose to file revision against that order wherein the revisional court, after hearing the applicant and opposite party No.2 and considering the explanation for non-appearance before the concerned Magistrate, set aside the order dated 27.6.2023 and remanded the case to the court below to decide the same on merit. 9. Though as per Section 401(4) Cr.P.C., which was also made applicable for the revision before Sessions Judge to some extent by Section 399(2) Cr.P.C., such bar on revision despite the remedy of appeal is not absolute. Sessions Judge has power u/s 397 Cr.P.C. to correct the order of his subordinate court to prevent miscarriage of Justice or multiplicity of procedure. Section 399 and 401 Cr.P.C. are quoted as under:- "Section 399. Sessions Judge's powers of revision. Sessions Judge has power u/s 397 Cr.P.C. to correct the order of his subordinate court to prevent miscarriage of Justice or multiplicity of procedure. Section 399 and 401 Cr.P.C. are quoted as under:- "Section 399. Sessions Judge's powers of revision. (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court. Section 401. High Court's powers of revision. (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." 10. It is clear from the above-quoted sections that Section 401(4) Cr.P.C. has been adopted in Section 399(2) Cr.P.C. with the condition 'so far as may be'. Therefore, the absolute bar created u/s 401(4) Cr.P.C., regarding the maintainability of revision despite the availability of the remedy of appeal, will not strictly apply to the revision before the sessions court. Hon'ble Apex Court, in the case of Rajendra Rajoriya vs. Jagat Narain Thapak and another; (2018) 17 SCC 234 , affirmed the maintainability of revision after dismissal of the complaint u/s 203 Cr.P.C. Paragraph No. 12 of the judgement in Rajendra Rajoriya (supra) is quoted as under:- "12. A perusal of the aforesaid provisions portray that the revisionary power is exercised either by the Sessions Court or by the High Court and a dismissal of the complaint by the Magistrate under Section 203 CrPC may be assailed in a criminal revision under Section 397 CrPC. The ambit of revisional jurisdiction is well settled. Section 397 CrPC empowers the Sessions Judge to call for and examine the record of any proceeding before any subordinate criminal court situated within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such subordinate court." 11. In the present case, the bar of Section 399(2) Cr.P.C. does not apply to revisions before the Sessions Judge; therefore, no illegality was committed by the revisional authority in entertaining the revision, especially considering that the present applicant had not raised any objection regarding the maintainability of the revision during the revision proceeding. 12. So far as the argument of learned counsel for the applicant that the applicant, being a signatory director, was wrongly summoned without summoning the company on whose behalf she had signed the cheque is concerned, Section 63 Cr.P.C. provides service of summons upon the director of the company who is also the principal officer of the company. Section 63 Cr.P.C. is being quoted as under:- "Section 63. Service of summons on corporate bodies and societies.- Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed, to have been effected when the letter would arrive in ordinary course of post. Explanation.-In this section, "corporation" means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860 (21 of 1860)." 13. In the present case, while issuing the summon, the learned Magistrate in his order dated 9.11.2017, specifically mentioned that the offence was committed on behalf of M/s Anupam Omerian Infrastructure Pvt. Ltd. that was impleaded as respondent No.1 in the complaint. Therefore, notice was not required to be issued to the company but to its signatory director (applicant). It is clear from the order dated 9.11.2017 that the company was impleaded as a party in the complaint, and the learned Magistrate summoned the applicant after determining that the offence had been committed on behalf of the company and being the signatory and active director of the company, notice should be served to the present applicant on behalf of the company. Therefore, there was no illegality in the summoning order dated 9.11.2017. 14. Even otherwise, the applicant challenged the summoning order dated 9.11.2017 after more than six years, without participating in the complaint proceeding till the dismissal of the same for want of prosecution. Therefore, there was no illegality in the summoning order dated 9.11.2017. 14. Even otherwise, the applicant challenged the summoning order dated 9.11.2017 after more than six years, without participating in the complaint proceeding till the dismissal of the same for want of prosecution. Therefore, considering the applicant's conduct, this court is not inclined to exercise its jurisdiction u/s 482 Cr.P.C. in favour of the applicant. However, the applicant can participate in the complaint proceeding before the court, raising all the issues available under the law. 15. In view of the above, the present application is dismissed. 16. However, considering the fact that the proceeding of the complaint case No. 5449 of 2017 has been pending since 2017, as per the mandate of N.I. Act which was further elaborated by the Apex court in the case of In Re: Expeditious Trial of Cases under Section 138 N.I. Act, 1881, reported in 2021 S.C.C. Online 325, the trial court is directed to conclude the proceeding of Complaint Case No. 5449 of 2017, u/s 138 N.I. Act, P.S. Hari Parwat, District Agra, expeditiously, preferably within six months from receipt of the copy of this order.