S.K.Agarwal - (1.)This revision petition under Sections 397/401 of the Code of Criminal Procedure (for short, "Cr.P.C."), 1973, is directed against the order dated 4.6.2001, passed by the court of Metropolitan Magistrate, New Delhi, dismissing the application of the petitioner for recalling the order of summoning, on the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act (for short, NI Act), 1881.
(2.)The facts in brief necessary for disposal of this petition are that respondent filed complaint under Sections 138 and 141 of NI Act, against M/s. Instalment Corporation Limited & Ors. and its directors, including petitioner, alleging therein that under the agreement dated 15.7.94, complainant deposited with the company of petitioner a sum of Rs.5,00,000/- for a period of 24 months. The agreement was signed by the petitioner on behalf of the company. In his capacity as the vice-president and the director. There was a breach of the agreement and in discharge of their liability petitioner issued a cheque of Rs.4,00,000/- on 1.8.97, drawn on Punjab National Bank, Bhikaji Cama Palace, New Delhi in favour of the respondent. Complainant presented the cheque in Indian Overseas Bank, Noida for realisation on 4.8.97, and the same was dishonoured with the remark "insufficient fund". On receipt of information a legal notice through the counsel of complainant was served on the company of petitioner on 13,8.97, calling upon them to pay to the complainant Rs.4,00,000/-, within the period of 15 days from the receipt of the said legal notice. The amount was not paid despite service of notice. The petitioner along with the two others mentioned in the complaint was stated to be responsible for the running of the day-to-day affairs of the company as envisaged under Section 141 of the NI Act. On the basis of the material produced, the accused persons were summoned in the above complaint. On 17.9.99, petitioner moved an application for recalling the order of summoning before the trial court, the same was dismissed vide order dated 4.6.2001. This order is under challenge.
(3.)It may be mentioned here that the perusal of the trial court record revealed that petitioner's plea for stay of criminal proceedings before the trial court, on the ground that his company was under liquidation, was rejected vide order dated 3.2.2001. Petitioner's earlier petitioner (Crl.M.(M).No.3017/2001) was declined by Hon'ble Mr.Justice K.S.Gupta on 6.11.2001 observing:-
"In view of decision in D.K.Kapur Vs. Reserve Bank of India and others, 90 (2001) DLT 127, this petition deserves to be dismissed being without any merit."
The above revision petition was filed on 31.8.2001, against another order dated 1.6.2001, passed by the trial court in the same case holding that there was valid service of notice. I have heard learned counsel for parties and have been taken through the record.