Final Order 5

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. APARNA SWAMI, ASJ-07
PATIALA HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
CNR No.DLND01-006669-2023
Criminal Revision No. 542/2023
IN THE MATTER OF :
1. SIDDHARTH CHANDRA
S/o Sh. Satish Chandra
R/o Flat No. 1001, Tower F,
Golf City, Plot No. 8,
Sector 75, Noida
Gautam Buddha Nagar, U.P.
2. POOJA CHANDRA
W/o Sh. Siddharth Chandra
R/o Flat No. 1001, Tower F,
Golf City, Plot No. 8,
Sector 75, Noida
Gautam Buddha Nagar, U.P. ......... Revisionists.
Vs.
1) STATE
Through Public Prosecutor
2) M/s SALORA INTERNATIONAL LTD.
D-13/14, Okhla Industrial Area Phase-II
New Delhi-110020 ......... Respondents.
Date of institution : 31.07.2023
Date on which order reserved : 14.10.2023
Date of order : 31.10.2023
Decision : Revision disallowed.
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ORDER ON REVISION PETITION
1. The present revision petition was filed under section 397
of Code of Criminal Procedure, 1973 (hereinafter referred to as
‘CrPC’) against the order dated 13.07.2023 (hereinafter referred
to as ‘impugned order’) passed in the complaint case bearing no.
39733/2016, which was filed under section 138 of Negotiable
Instruments Act, 1881, in case titled as ‘M/s Salora International
Ltd. Vs. M/s Intercon Infotech Pvt. Ltd.’, wherein the Ld.
Magistrate has dismissed the application for dismissal of the
complaint filed on behalf of accused (i.e. M/s Intercon Infotech
Pvt. Ltd.) and has observed as under:
“The court, after the perusal of the case laws relied upon
by the parties, is of the opinion that the ratio as laid down
in Gimpex (Supra) squarely applies to the facts of the
present matter and therefore, the earlier complaint i.e. CC
No.39733/2016 shall not be maintainable. However, the
court also finds force with the contention of the
complainant that in view of the judgment of Subramanium
(Supra) and Adalat Prasad (Supra), this court does not
have the power to dismiss the present complaint as the
court can not revisit the order of summoning indirectly,
under the garb of the present application, and as no
provision for dismissal at this stage has been provided
under Cr.P.C. The proper remedy for the accused is to
approach an appropriate forum for appropriate orders.
Accordingly, in view of the foregoing reasons, the
application is hereby dismissed and is accordingly
disposed off.”
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2. It is the case of revisionist that by order dated 13.07.2023,
Ld. Magistrate has dismissed the application for dismissal of
complaint case no. 39733/2016; aggrieved by this order, present
revision petition is filed before this court.
3. It is submitted by Ld. Counsel for revisionist that as
second complaint has been filed in lieu of dishonour of the
cheque bearing no. 086743, 086737 and 086736 of Rs.6,45,586/-,
Rs.54,55,172/- and Rs.10,80,997/- respectively, which were
issued after entering into the settlement between the parties.
Therefore, as per law laid down in the judgment of M/s Gimpex
Pvt. Ltd. Vs. Manoj Goel, Crl. Appeal No. 1068/2021, the initial
complaint is not maintainable.
4. Ld. Counsel for respondent has opposed the present
revision petition on the ground that the remedy with the
revisionist is to go for quashing of the proceedings before the Ld.
Magistrate Court and not to file revision petition with regard to
the impugned order dated 13.07.2023.
5. I have heard the arguments from both the sides and have
perused the trial court record thoroughly.
6. Before dealing with the contentions in the present revision
petition, it is relevant to quote section 397 of Code of Criminal
Procedure, which reads as under:
Section 397. Calling for records to exercise powers of revision-
(1) The High Court or any Sessions Judge may call for and
examine the record of any proceeding before any inferior
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Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself 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
inferior Court, and may, when calling for such record, direct
that the execution of any sentence or order be suspended, and if
the accused is in confinement, that he be released on bail or on
his own bond pending the examination of the record.
Explanation.- All Magistrates whether Executive or Judicial,
and whether exercising original or appellate jurisdiction, shall
be deemed to be inferior to the Sessions Judge for the purposes
of this sub- section and of section 398.
(2) The powers of revision conferred by sub- section (1) shall
not be exercised in relation to any interlocutory order passed
in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any
person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by
the other of them.
7. Further, in case of Girish Kumar Suneja Vs. CBI (2017)
14 SCC 809, it has been observed that:
“It is well settled that in deciding whether an order challenged
is interlocutory or not as per section 397 (2) of Code, the sole
test is not whether such order was passed during the interim
stage. The test is whether by upholding objection raised by a
party, it would result in culminating the proceedings, if so in
order passed on such objection would not merely be
interlocutory in nature.”
In view of the above discussion, it is clear that under
section 397 CrPC, the feasibility test is whether by upholding the
objections raised by a party, it would result in culminating the
proceedings, if so in order passed on such objection would not be
interlocutory in nature. But, if an order is intermediate which has
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effect of terminating the proceedings and thereby resulting in a
final order such orders are revisable.
8. In the present revision petition, the basic question which is
required to be dealt with is whether the impugned order dated
13.07.2023 is revisable. Section 397 CrPC puts restrictions over
revisional court, so as to entertain the revision against the order
passed by a lower court, if the impugned order is found to be an
interlocutory order.
9. In the impugned order dated 13.07.2023, Ld. Magistrate
has simply talked about the powers of the Magisterial Court with
respect to review of its own order. In this regard, Ld. Magistrate
has taken inference from the judgments of Subramanium
Sethuraman Vs. State of Maharashtra & Anr., Crl. Appeal No.
1253 of 2002 and Adalat Prasad Vs. Rooplal Jindal & Ors., Crl.
Appeal No. 91 of 2002, and hence dismissed the application for
dismissal of the complaint case bearing no. 39733/2016. As
observed from the order, the impugned order dated 13.07.2023 is
non decisive of any rights or liabilities of the parties. The order is
simplicitor in nature of disallowing the dismissal of the initial
complaint and hence found to be interlocutory in nature. Thus, as
per the law, as discussed above, the order being interlocutory in
nature cannot be challenged under the revisional jurisdiction of
this court. However, the revisionist is at liberty to seek
appropriate remedy as per decision of M/s Gimpex Pvt. Ltd. Vs.
Manoj Goel, Crl. Appeal No. 1068/2021.
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10. With these observations, present revision petition is
disallowed.
11. The Trial Court Record alongwith copy of this order be
sent to the concerned trial court.
12. Revision file be consigned to Record Room.
Announced in the open court
On 31.10.2023
(Aparna Swami)
ASJ-07/PHC/New Delhi
31.10.2023
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