Crl.M(M) No.2727 of 1999

29th January, 2002

Petitioner Counsel: Mr. D. K. RASTOGI,Mr. ADITYA MAKKHIM
Respondent Counsel: Mr. S. S. GANDHI, S. K. SINGH

Cases Cited:
Davinder Kumar v. State of Delhi, 1989 CCC 386 [Para 3,5]
K.M. Mathew v. State of Kerala, AIR 1992 SC 2206 [Para 3,6]
Chander Deo Singh v. Prakash Chander Bose, AIR 1963 SC 397 [Para 4]
Dr. S.S. Khanna v. Chief Secretary, Patna, AIR 1983 SC 595 [Para 4]
Satish Mehra v. Delhi Administration, 1996 JCC 507 [Para 4]
Menka Gandhi v. Union of India, AIR 1978 SC 597 [Para 4]

JUDGMENT

JUDGMENT :- This revision petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') is directed against the order dated 11th May, 1999 passed by the Court of Shri. S.N. Aggarwal, ASJ, Delhi, directing the trial Court to give hearing to the accused/respondent at the stage of notice, in the complaint under Section 138 of Negotiable Instruments Act. The question requiring consideration is, whether under the Code, in a summons trial case, the accused is entitled to hearing at the stage of notice?

2. Facts, in brief, are : that S.C. Rastogi, a tax consultant, filed a complaint against Smt. Renu Kalra, proprietor of M/s. Ridhi Enterprise, under Section 138 of the Negotiable Instruments Act, alleging that three cheques issued by her were dishonoured and the amount was not paid despite notice. The trial Court after preliminary enquiry on 30.7.1996 summoned the accused. On 18.11.1996 the accused appeared and moved an application for summoning certain Income-tax record of the complainant including his statement made before the Income-tax Authority in relation to the cheques in question and for admission/denial of documents under Section 294 Cr.P.C. The application was allowed. On 16.7.1998, the complainant admitted his signatures on the documents but denied their contents. Thereafter matter was listed for framing of notice and on the objection by learned counsel for the complainant, the trial Court by order dated 31.3.1999 held that in a summons trial case, at the stage of framing of notice under Section 251 Cr.P.C., the accused has no right of hearing. Aggrieved by this order, the accused filed a revision petition and the learned Addl. Sessions Judge by order dated 11.5.99, allowed the petition and directed trial Court to give hearing to the accused. This order is under challenge by petitioner/complainant. I have heard learned counsel for the parties and have been taken through the record.

3. Learned counsel for petitioner vehemently argued that the respondent was summoned under Section 138 of Negotiable Instruments Act, 1985 which is a summons trial case, that under Section 251 Cr.P.C. only substance of alleged offence is to be stated to the accused, when the accused appears or is brought before the Court and asked whether he pleads guilty or claims trial and that there is no provision of hearing the accused at this stage. In support of his submission reliance was placed on the decision of this Court in Davinder Kumar and another v. State of Delhi, 1989 CCC 386. Shri. S.S. Gandhi, learned Senior counsel for the respondent argued to the contrary and submitted that as per the settled law even in a summons trial case, after the accused appears, he has a right to pray for revocation of cognizance which means hearing. In support of his submission reliance was placed on the Supreme Court decision in K.M. Mathew v. State of Kerala and Anr., AIR 1992 SC 2206.

4. I have considered the rival contentions. At the stage of issuance of process under Section 204 Cr.P.C., the Court is only to see whether there are grounds for proceeding in the matter. The accused does not have any right to take part at this stage, as was held by the Supreme Court in Chander Deo Singh v. Prakash Chander Bose, AIR 1963 SC 397 and Dr. S.S. Khanna v. Chief Secretary, Patna, AIR 1983 SC 595. And while framing of notice under Section 251 Cr.P.C., the Court is to satisfy itself after appearance of the accused, that the offence has been committed which can be legally tried by him on the material on record. The prosecution may be barred by limitation or bad for sanction or otherwise not sustainable. In this case, additional documents have been brought on record, the Magistrate would be duty bound to consider on the material on record and arrive at a satisfaction that prima facie an offence is committed by an accused or not. No adverse order can be passed without giving the affected party an opportunity of being heard. It would be incumbent upon the Magistrate to drop the proceedings, if he is satisfied that no offence,is made out for which the accused could be lawfully tried. If there is no offence for which the accused could be tried, it is implied that the Magistrate has no jurisdiction to proceed with the trial, for framing of notice under Section 251 Cr.P.C. The principles of natural justice also require an opportunity of being heard to be given to the affected parties. In Satish Mehra v. Delhi Administration, 1996 JCC 507, Supreme Court held that Sessions Judge would be within his power to consider even the materials which the accused may produce at the stage contemplated under Section 227 of the Cr.P.C. This principle by analogy would be applicable to the warrant or summons trial cases at the time of framing of notice. Even otherwise, the principle of audi alteram partem, mandates that no one shall be condemned unheard. It forms part of the rules of natural justice, as was held by the Apex Court in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597. The procedure has to be fair, just and proper. This right of hearing cannot be denied to an accused, it is inherent in any judicial process. Order of framing of notice does substantially affect the right of an accused. In K.M. Mathew v. State of Kerala (supra), the Apex Court held as under:

"7. The High Court seems to be too technical in this regard. If one reads carefully the provisions relating to trial of summons cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused." (emphasis supplied)

5. Faced with the above situation, learned counsel for petitioner argued that the accused did not make any application for recalling the order of summoning, and that application for recalling the order of summoning is different from hearing the accused, at the time of framing of notice. I am unable to agree. Application for recalling is not required to be moved in a particular format. Such an application can even be oral. When the accused is seeking hearing at the stage of framing of notice, in fact he is praying for revocation of cognizance under Section 204 Cr.P.C., on an oral prayer. The view taken by the learned Single Judge of this Court in Devinder Kumar v. State of Delhi (supra), can no longer hold the field, in view of the above authoritative pronouncement by the Supreme Court.

6. In this case, as noticed, the facts are not in dispute. After service of summons accused appeared before the trial Court and record of Income-tax was summoned. Admission/denial of documents has already been carried out. As held by the Supreme Court in K.M. Mathew case (supra), power to drop the proceedings against the accused is vested in the Court, even after he is summoned. It, therefore, follows that the accused would be entitled to a hearing at the notice stage even in a summons trial case. The accused cannot be forced to go through the grill of trial, if he demonstrates on the basis of admitted facts that no case against him is made out. In such a situation.the Court would be well within its jurisdiction to revoke the cognizance.

7. For the foregoing reasons, I find no illegality or impropriety in the impugned order to warrant interference. Dismissed. Trial Court record be sent back.

Petition dismissed.

Petition dismissed