S C RASTOGI Vs. RENU KALRA

JUDGEMENT

(1.) This revision petition under Section 482 of the code of Criminal Procedure, 1973 (for short,'Code of Criminal Procedure') is directed against the order dated 11/05/1999 passed by the Court of Sh. 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 Kaira, proprietor of M/s.Ridhi Enterprise, under Section 138 of the Negotiable instrument 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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 Code of Criminal Procedure only substance of alleged offence is to be stated to the accused, when the accuaed 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 & Anr. Vs. State Of Delhi. 1989 CCC 386. Sh.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 Vs. State of Kerala and Anr. AIR 1992 sc 2206.