9911796707
TMI Blog2023 (9) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cheque in favour of the respondent no 2 can only be established during trial and on basis of the evidence to be led by the petitioners and the respondent no 2. The proposed defence of the petitioners as detailed cannot be legally considered at time of taking cognizance by the trial court which is obliged to take cognizance merely on basis of allegations as made in complaint and pre summoning evidence if any. On the basis of pleas as taken in the present petition and arguments advanced by the learned Senior Counsel for the petitioners, the summoning order dated 23.10.2018 cannot be recalled. The petition is devoid of any merit - Petition dismissed. - HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN For the Petitioners Through: Mr. Puneet Mittal, Senior Advocate with Ms. Vasudha Bajaj, Mr. Pratap Singh, Mr. Rupendra Pratap Singh and Ms. Sakshi Mehandiratta, Advocates For the Respondents Through: Mr. Utkarsh, APP for the State/R-1. Ms. Lalit Mohini Bhat and Mr. Siddharth Agarwal, Advocates for R-2. JUDGMENT 1. The present petition is filed under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the code ) to set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concerned process server is directed to affix the copy of the same on some conspicuous part of the premises wherein the person summoned ordinarily resides, in terms of Section 65 Cr.P.C. 4. The petitioners alleged that the respondent no. 2 company is involved in preparing false and fabricated documents to extort money and is running extortion racket. The respondent no. 2 had filed a number of cases against the petitioner no 1 in Delhi as well as in the state of Jammu Kashmir. The police of Jammu Kashmir lodged FIR bearing no. 69/2019 in district Anantnag against the directors of the respondent no 2 amongst others which is pending for investigation. The respondent no 2 found to extort money from the eminent persons of the society by making false complaints. During the investigation, one Ajay Kumar Aggarwal, was arrested by the police of District Anantnag, Jammu Kashmir. In status report filed before the court, it was categorically mentioned that the respondent no 2 had filed fake and false complaints before various Courts in District Anantnag and Kulgam. The authorized representative of the respondent no 2 namely Pankaj Jain is on anticipatory bail. The petitioner n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearers of the petitioner under sections 420/109/120B/34/403/406/506/507 Ranbir Penal Code. The petitioner no 1 came to know that M/s Host finance and Investment Pvt. Ltd. company and its representatives had criminally misappropriated / stolen 4 cheques including the cheque bearing no 997645. The petitioner no l filed a complaint dated 19.09.2018 on 26.09.2018 vide entry no 57B before SHO, Police Station Mehrauli and accordingly FIR no 732/2018 under section 380 IPC dated 12.11.2018 was got registered against Pankaj Jain and Ashok Kumar, Directors of M/s Host Finance and Investment Pvt. Ltd. M/s Host Finance and Investment Pvt. Ltd. on 15.10.2018 filed a complaint case no 219/2018 under section 138 NI Act on basis of dishonour of cheque no 997945 titled Pankaj Jain V Topline Buildtech Pvt. Ltd. Others before the District Mobile Magistrate Traffic, Anantnag District Courts, Kashmir, arraying the petitioner no l as accused but none of its directors / office bearers was arrayed as a party nor there is any specific allegation against its directors / office bearers in the said complaint. The High Court of Jammu and Kashmir at Srinagar vide order dated 11.12.2018 passed in Cr.M.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of cheques bearing no. 997643 and 997644 under section 138 of NI Act. The cheque in question bearing no 997642 is one of the four stolen cheques against which FIR was lodged in PS Mehrauli. There is no specific details and allegations against any of the directors or office bearers of the petitioner no l. The authorized representative of the respondent filed the present complaint only with the sole motive to extort money from the petitioners without any legally enforceable debt against them. The respondent had not mentioned or enclosed any document or agreement against which the alleged loan was tendered to the petitioner no l. The present complaint filed is mala fide in as the respondent and M/S Host Finance and Investments Pvt. Ltd. are sister concern companies and Pankaj Jain is prosecuting person in both companies against whom FIR bearing no 732/2018 under section 380 IPC dated 12.11.2018 was registered in PS Mehrauli. The petitioners made following prayers:- It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to: (a) Set aside summoning order dated 23.10.2018 passed by Sh. Vikram Ld. MM-01, North, Rohini Court, Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeds the amount arranged to be paid from that account by an agreement made with the bank (iv) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid (v) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course within 15 days of the receipt of the said notice (vi) The complaint is to be filed within one month from the date of expiry of the 15 days from the receipt of the notice. 8. The Supreme Court in Pepsi Foods Ltd. V Special Judicial Magistrate regarding summoning observed as under:- 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st cheques also stated additional facts that the petitioner no 2 on behalf of the petitioner no 1 fearing misuse of these undated signed blank cheques has intimated vide letter dated 27.09.2014 to its bankers directing that any payment against these cheques be stopped and also wrote a complaint to the SHO, Police Station Mehrauli, New Delhi on 27.9.2014 and thereafter First Information Report in respect of non-cognizable offence under section 155 of the Code bearing NCR No. 1361/2014 dated 01.10.2014 was also recorded. The petitioners no 1 and 2 also receipt of legal notice dated 28.08.2018 on behalf of Pankaj Jain, Director of M/s Host Finance and Investment Pvt. Ltd. under section 138 of NI Act in respect to cheque bearing no 997645 which was allegedly dishonoured by the bankers of the petitioner no l on ground of insufficient funds . M/s Host Finance and Investment Pvt. Ltd. filed a private criminal complaint no 194/2018 against the petitioners no 1 and 2 before the court of CJM, Anantnag on the basis of cheque bearing no 997645 under sections 420/109/120B/34/403/406/ 506/507 Ranbir Penal Code. It was alleged that M/s Host finance and Investment Pvt. Ltd. company and its repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Khurana V State of (NCT of Delhi), (2009) 6 SCC 72. It was further observed that the trial Court was right in holding that the loss of cheque could be ascertained only during trial. 12. It is apparent that cheques bearing no 997642 which is basis of present complaint is dated 01.06.2018 while the petitioner no 1 through the petitioner no 2 intimated its banker vide letter dated 27.09.2014 to stop any payment against these cheques and made a complaint to the SHO, Police Station Mehrauli, New Delhi on 27.9.2014 vide NCR No. 1361/2014 dated 01.10.2014 i.e. much prior from alleged dates of issuance of cheque bearing no 997642. However plea of the petitioners that cheque bearing no 997642 which is basis of present complaint was lost in year 2014 much prior to issuance of the cheque in favour of the respondent no 2 can only be established during trial and on basis of the evidence to be led by the petitioners and the respondent no 2. The proposed defence of the petitioners as detailed hereinabove cannot be legally considered at time of taking cognizance by the trial court which is obliged to take cognizance merely on basis of allegations as made in complaint and pre summoning evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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