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Judgment
NAVIN CHAWLA, J. (ORAL)
This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, „Cr.P.C.‟), challenging the Order dated 27.05.2022 (hereinafter referred to as the „Impugned Order‟) passed by the learned Additional Sessions Judge-04, North, Rohini, Delhi (in short, „ASJ‟) in Criminal Revision No.10/2022, titled Balmeet Singh Kathuria v. State & Ors., dismissing the said revision petition.
The above revision petition had been filed by the petitioner, challenging the order dated 14.12.2021 passed by the learned Metropolitan Magistrate-03, North, Rohini, Delhi (in short, „MM‟) in Complaint Case No.5993/2019, titled M/s Techonomics India v. Prime Bizworld Pvt. Ltd. & Ors, convicting the petitioner herein for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, „NI Act‟) and sentencing him to simple imprisonment for a period of three months and directing him to pay compensation to the complainant/respondent no.2 herein of an amount of Rs.4,25,000/-under Section 356(3) of the Cr.P.C., and in default, to undergo further simple imprisonment for one month.
The above complaint was filed by the respondent no.2 inter alia alleging that the respondent no.2 is a well-known and reputed distributor of various electronic gadgets, including sound systems, mobile phones and its accessories of various reputed companies and brands. It is also the distributor of the well-known and reputed brand „JBL‟. The accused no.1, that is, Prime Bizworld Private Ltd. is engaged in the business of trading of electronic items and other allied accessories, while the accused nos. 2 and 3 were impleaded as directors of accused no.1, on the assertion that they are actively involved and responsible for day to day business of the accused no.1 company, which is being run as a family business. The petitioner herein was arrayed as accused no. 4 in the complaint with the assertion that he is the signatory to the cheque.
In the complaint, it was further alleged that the accused had approached the Complainant Company expressing their desire to purchase the products of JBL from the complainant. Accordingly, the complainant supplied the goods to the accused under invoice bearing No. TIJBL-317-1920 dated 12.07.2019 for a sum of Rs.3,53,500/-. The accused, in order to discharge their liability for the said invoice, issued a cheque bearing no. 972193 dated 30.08.2019 for a sum of Rs.3,53,500/- drawn on State Bank of India, Chandani Chowk, Delhi-110006. The said cheque, however, on presentation was retuned dishonoured vide Return Memo dated 20.09.2019 with remarks „Funds Insufficient‟. The complainant thereafter issued a legal notice of demand dated 18.10.2019 to the accused, however, it was neither replied to nor was payment made. The complainant thereafter filed the abovementioned complaint against the accused.
When the complaint came up before the learned MM on 12.10.2021, the learned MM framed Notice of the substance of acquisition on the petitioner, to which the petitioner pleaded guilty and stated that he does not wish to claim trial. The same is relevant for the purpose of adjudication of the present petition and is therefore reproduced herein below:
“NOTICE U/ 251 OF CRPC I, MAYANK GOEL, M.M. -03, NORTH ROHINI COURTS, DELHI, DO HEREBY
GIVE NOTICE U/S 251 CRPC TO SH. BALMEET SINGH KATHURIA S/O SH. HARJINDER SINGH KATHURIA, R/O 16/14, EAST PATEL NAGAR DELHI, ON HIS BEHALF AND ON BEHALF OF ACCUSED NO.1, PRIME BIZWORLD PVT. LTD. AS UNDER:
IT IS ALLEGED AGAINST YOU THAT YOU HAD ISSUED CHEQUE BEARING NO. 972193 DATED 30.08.2019 FOR AN AMOUNT OF RS.3,53,500 DRAWN ON SBI BANK, CHANDNI CHOWK, NEW DELHI IN FAVOUR OF COMPLAINANT IN ORDER TO DISCHARGE YOUR LIABILITY FOR THE GOODS PURCHASED. ON PRESENTATION THE SAID CHEQUE WAS DISHONOURED WITH REMARKS “FUNDS INSUFFICIENT”. YOU DID NOT PAY THE ENTIRE AMOUNT TO THE COMPLAINANT DESPITE LEGAL NOTICE DATED 18.10.2019 ISSUED TO YOU IN THIS REGARD. YOU FAILED TO MAKE PAYMENT OF THE SAID CHEQUE WITHIN IN STIPULATED TIME AND THEN THIS COMPLAINT WAS FILED AGAINST YOU BY THE COMPLAINANT WITHIN THE PERIOD OF LIMITATION. IN THIS WAY YOU HAVE PRIMA FACIE COMMITTED AND OFFENCE PUNISHABLE UNDER SECTION 138 NI ACT AND WITHIN MY COGNIZANCE.
I HEREBY DIRECTED THAT YOU BE TRIED BY THIS COURT FOR THE SAID OFFENCE. THE NOTICE IS READ OVER AND EXPLAINED TO THE ACCUSED WHO IS QUESTIONED AS UNDER: Q. DO YOU PLEAD GUILTY OR CLAIM TRIAL? ANS. I PLEAD GUILTY AND DO NOT CLAIM TRIAL.”
On the same day, the learned MM proceeded to pass an order dated 12.10.2021, wherein it recorded that while the petitioner who was arrayed as accused no. 4 has pleaded guilty, the other accused persons namely Mr.Taranjeet Singh Kathuria and Smt. Harjeet Kathuria, who were impleaded as accused nos. 2 and 3, have pleaded not guilty and have claimed trial. The order further records that the counsel for the said accused made oral submission to drop the proceedings against the said accused on the ground that they had no knowledge about the present case and were sleeping partners of the accused no. 1 Company. Based on the said submission and recording the no objection of the learned counsel for the complainant, the proceedings were dropped against the said two accused. It is necessary to note here that the same counsel who was representing the petitioner herein was also representing the said two accused persons against whom the proceedings were dropped by the order dated 12.10.2021. The order is relevant and is therefore reproduced herein below :
“12.10.2021
In Court through physical hearing.
Present: Ld. Counsel for complainant.
Accused with Ld. Counsel.
Fresh vakalatnama filed.
Accused Balmeet Singh Kathuria has furnished bail bond in sum of Rs. 5000/- with surety of like amount.
Bail bond accepted.
Notice under Section 138 framed against all the accused and accused Balmeet Singh Kathuria pleaded guilty and do not claim trial and other accused Sh. Taranjeet Singh Kathuria and Smt. Harjeet Kathuria pleaded not guilty and claimed trial.
Separate statement of the accused Sh. Taranjeet Singh Kathuria and Smt. Harjeet Kathuria under Section 294 Cr.PC has been recorded and they admitted the documents Ex.CW1/5 and Ex. CW1/6.
Therefore witnesses mentioned at serial no. 3 and 4 in list of witnesses filed by the complainant are hereby dropped.
Ld. Counsel for accused has orally made submissions to drop the proceedings against accused Taranjeet Singh Kathuria and Smt. Harjeet Kathuria on the ground that they have no knowledge about the present case and they are sleeping partners in the accused no.1 company Same is not objected by accused Balmeet Singh Kathuria and by Ld. Counsel for complainant.
Therefore, the proceedings of the present case is hereby dropped against accused Taranjeet Singh Kathuria and Smt. Harjeet Kathuria. Since the accused Balmeet Singh Kathuria has pleaded guilty in the present case, put up for orders on 08.11.2021.”
The case was then listed on 08.11.2021 before the learned MM. On the said date, it is stated that, as the accused/petitioner was not present, the same was adjourned to 14.12.2021.
On 14.12.2021, the learned MM, based on the plea of guilt by the petitioner as recorded on 12.10.2021, convicted him for the offence under Section 138 of the NI Act and thereafter proceeded to sentence him with imprisonment and fine, as has been recorded hereinabove. In the order, it is also recorded that the learned counsel for the petitioner inter alia submitted that the petitioner has mistakenly pleaded guilty while Notice under Section 251 of the Cr.P.C. was being framed on 12.10.2021.
Therefore, the first occasion when the petitioner protested against the recording of plea of guilt was on 14.12.2021, that is, almost two months after the same had been recorded by the learned MM in the Order dated 12.10.2021, and in fact, by the same order, the other two accused had been discharged as though they had pleaded not guilty but also had stated that they had no role to play in dishonour of the cheque, to which the learned counsel for the complainant had agreed.
Aggrieved by the above Order dated 14.12.2021, the petitioner challenged the same by way of a Revision Petition, which has been dismissed by the learned ASJ by the Impugned Order, inter alia observing as under:
“5.It is not in denial that the accused (revisionist herein) is educated one and counsel for the accused was also present before ld. Trial Court at the time of recording of plea of guilt of the accused. Perusal of the record reveals that there is no objection recorded from the accused side regarding his wrong recording of plea of guilt. It is further pertinent to mention here that order on sentence was pronounced on dated 14/12/2021. If the revisionist-accused was fully aware about the wrong submission being recorded during plead guilty, he would have moved some written application to the Court during the said period. It is only subsequent to the passing of the impugned order on sentence dated 14/12/2021, the present revision petition has been preferred. The judgments relied upon by the Id. counsel for the revisionist-accused are not applicable to the present case as the proper notice reflecting all the facts has been framed by the Id. MM and there are presumptions pertaining to Section 138 of Negotiable Instruments Act. Therefore, the ld. MM was fully competent to pass order on sentence on the plea of guilt. Keeping in view all these facts and circumstances, there is no illegality, impropriety or irregularity in the impugned order on sentence dated 14/12/2021 passed by Id. Trial Court. Accordingly, the same is upheld. The revision petition is dismissed and is disposed of accordingly.”
Aggrieved by the said Order, the petitioner has now filed the present petition under Section 482 of the Cr. P.C..
The learned counsel for the petitioner submits that the learned MM has erred in not following the procedure under Sections 251 and 252 of the Cr. P.C. He submits that the notice was not explained to the petitioner in his language and in a manner which he could properly understand, because of which, by mistake the petitioner pleaded guilty to the notice.
He submits that, even otherwise, if the accused pleads guilty, it is the duty of the Court to also consider if the said plea was made unknowingly or due to a mistake. The conviction cannot result merely because the accused has pleaded guilty. In support of his plea, he has placed the judgments of Supreme Court in Shri Mahant Kaushalya Das v. State of Madras, 1965 SCC OnLine SC 3; Jupudi Anand Gupta v. State of Andhara Pradesh, (2019) 14 SCC 723; and Judgment of High Court of Madras in P.Saravanan v. State, 2016 SCC OnLine Mad 17765; and Judgment of High Court of Karala in Raseen Babu K.M. v. State of Kerala, 2021 SCC OnLine Ker 2526.
On the other hand, the learned counsel for the respondent no.2 submits that the petitioner had fully understood the Notice that was put to him by the learned MM, before pleading guilty. He submits that the petitioner was also represented by a counsel and therefore, it cannot be accepted that the plea of guilty was wrongly recorded by the learned MM. He submits that the petitioner has intentionally not disclosed his educational qualification before the Revisional Court or before this Court and, therefore, the plea of the petitioner that he could not understand the Notice being framed against him, cannot be accepted. He submits that there was no protest against the order dated 12.10.2021 till 14.12.2021, when the Impugned Order of conviction and sentence was passed against the petitioner.
I have considered the submissions made by the learned counsels for the parties.
As is noted hereinabove, the Notice was framed by the learned MM against the petitioner on 12.10.2021. The Notice is in clear language and is totally unambiguous. The petitioner pleaded guilty and claimed no trial in the same.
The learned counsel for the respondent no.2 has pointed out that on the very same day, two other complaints filed by the respondent no. 2 were also listed, in which the petitioner pleaded not guilty and claimed trial. He, therefore, rightly submitted that the petitioner fully understood the implication of him pleading guilty; and pleading of guilt was conscious act on part of the petitioner. The petitioner was also represented by a counsel who also did not protest once the plea of guilt was recorded and thereafter the Order was passed by the learned MM, wherein accused nos. 2 and 3 were in fact dropped from the proceedings. It is only as an afterthought, once the order of conviction was recorded by the learned MM on 14.12.2021 and the Court proceeded to consider the quantum of sentence, that this plea was taken by the petitioner.
In Shri Mahant Kaushalya Das (supra), the Supreme Court was confronted with the position where the admission of the accused therein had not been recorded by the Magistrate “as nearly as possible in the words used by him” as required by Section 243 of the Cr.P.C., 1898, which provision is pari materia to Section 252 of the Cr.P.C. The Court therefore held as under:
“.......In our opinion, the requirements of Section 243 of the Criminal Procedure Code are mandatory in character and a violation of these provisions vitiates the trial and renders the conviction legally invalid. The requirement of the section is not a mere empty formality but is a matter of substance intended to secure proper administration of justice. It is important that the terms of the section are strictly complied with because the right of appeal of the accused depends upon the circumstance whether he pleaded guilty or not and it is for this reason that the legislature requires that the exact words used by the accused in his plea of guilty should, as nearly as possible, be recorded in his own language in order to prevent any mistake or misapprehension. It has been held by the Madras High Court in Queen-Empres v. Erugadu that the violation of the procedure in Section 243 of the Criminal Procedure Code was sufficiently serious to invalidate the conviction of the accused. The same view has been taken by the Calcutta High Court in Shailabala Dasee v. Emperor and by the Allahabad High Court in Mukandi Lal v. State. In our opinion, these cases correctly lay down the law on the point.”
In Jupudi Anand Gupta (supra), the Court was again confronted with the position where only the contents of the Charge-sheet had been read over to the accused and it was stated that he had pleaded guilty. It was on those facts that the Court held that the conviction of the accused only on the basis of him pleading guilty cannot be sustained.
In P.Saravanan (supra), the Court was confronted with the position where there was no record to show that the plea of guilt was put to the accused and the statement recording that plea was recorded by the learned Trial Court.
In Raseen Babu (supra), the Kerala High Court held that the record of the plea of guilt should be recorded in words of the accused.
In the present case, as is noted hereinabove, not only the Notice that was put to the petitioner was unambiguous, but also his plea was clearly recorded in the words of the petitioner himself.
I therefore, find no merit in the present petition. The same is accordingly dismissed.
The petitioner shall pay costs of Rs.30,000/- to the respondent for the present petition.
The petitioner shall surrender before the learned MM within a period of one week from today.
The petitioner, in compliance with the order dated 12.07.2022 of this Court, claims to have deposited Rs.1,00,000/- with the learned Registrar General of this Court. The said amount along with interest accrued thereon shall be released to the respondent no. 2, and shall be first adjusted towards the costs awarded by the present judgment and remaining towards the fine that has been imposed by the learned MM.
The pending application also stands disposed of.