# Corporation Ltd v. State (NCT of Delhi)

- **Citation:** (2012) 2 ILRA 944
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-23
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/corporation-ltd-v-state-nct-of-delhi-42311
- **Pages:** 4

## Headnote

order
challenged under section 200 recordedsummoning order after 15 years itself
barred
by
limitations-held-Branch
manager of Bank itself be treated
complaint-and
the
delay
caused
by
Court-complainant can not be blamedheld-summoning
order
justifiedobservation regarding prompt action on
complaint made-to sub serve the very
purpose of code.

Held: Para 5 and 8

As regards the contention that the
proceedings were barred by limitation, I
am of the view that if the complaint was
made within the period of limitation, the
complainant has done what he could do.
It is for the Court thereafter to proceed
and issue process. Accordingly, if the
Court delays issuance of process the
complainant cannot be penalized for the
delay on part of the Court. The Apex
Court in the case of Japani Sahoo Vs.
Chandra Shekhar Mohanty, reported in
(2007) 7 SCC, 394 held that the relevant
date,
for
computing
the
period
of
limitation under Section 468 CrPC, is the
date on which the complaint is filed for
initiating criminal proceedings and not
the date of taking cognizance by a
Magistrate or issuance of process by a
Court.

With regards to the submission that the
statement of Jitendra Nath Trivedi could
not have been relied, as he was neither
examined in Court nor he presented the
complaint, I am of the view that this
would not make a material difference at
the
stage
of
summoning.
It
is
noteworthy that the complaint was
presented on behalf of Allahabad Bank,
which is a public sector bank constituted
under
the
Banking
Companies
(Acquisition & Transfer of Undertakings)
Act, 1970, which is a Central Act.
Moreover it is a Government Company
under section 617 of the Companies Act.
Therefore, by virtue of Section 21 clause
Twelfth of Indian Penal Code read with
Section 2(y) of the Code of Criminal
Procedure, its branch Manager, who
presented the complaint, would be a
"public servant" and, as such, by virtue
of the decision of the Apex Court in the
case
of
National
Small
Industries
Corporation Ltd. V. State (NCT of Delhi)
(2009) 1 SCC 407 (vide paragraphs 16,
19 and 20 of the judgment) the benefit
of the proviso to Section 200 CrPC i.e.
exemption from examination of the
complainant and the witnesses, would
be available, even though Allahabad
Bank
(the
Company)
was
the
complainant.
Accordingly,
the
summoning order cannot be faulted on
this ground as well.
Case law discussed:
(2007) 7 SCC, 394; (2009) 1 SCC 407

## Text

944 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

Criminal Revision No. - 2560 of 2012

Sanjay Somani

 ...Petitioner
Versus
State of U.P. & another ...Respondents

Counsel for the Petitioner:
Sri Vishal Jaiswal

Counsel for the Respondents:
A.G.A.

Criminal
Revision-summoning
order
challenged under section 200 recordedsummoning order after 15 years itself
barred
by
limitations-held-Branch
manager of Bank itself be treated
complaint-and
the
delay
caused
by
Court-complainant can not be blamedheld-summoning
order
justifiedobservation regarding prompt action on
complaint made-to sub serve the very
purpose of code.

Held: Para 5 and 8

As regards the contention that the
proceedings were barred by limitation, I
am of the view that if the complaint was
made within the period of limitation, the
complainant has done what he could do.
It is for the Court thereafter to proceed
and issue process. Accordingly, if the
Court delays issuance of process the
complainant cannot be penalized for the
delay on part of the Court. The Apex
Court in the case of Japani Sahoo Vs.
Chandra Shekhar Mohanty, reported in
(2007) 7 SCC, 394 held that the relevant
date,
for
computing
the
period
of
limitation under Section 468 CrPC, is the
date on which the complaint is filed for
initiating criminal proceedings and not
the date of taking cognizance by a
Magistrate or issuance of process by a
Court.

With regards to the submission that the
statement of Jitendra Nath Trivedi could
not have been relied, as he was neither
examined in Court nor he presented the
complaint, I am of the view that this
would not make a material difference at
the
stage
of
summoning.
It
is
noteworthy that the complaint was
presented on behalf of Allahabad Bank,
which is a public sector bank constituted
under
the
Banking
Companies
(Acquisition & Transfer of Undertakings)
Act, 1970, which is a Central Act.
Moreover it is a Government Company
under section 617 of the Companies Act.
Therefore, by virtue of Section 21 clause
Twelfth of Indian Penal Code read with
Section 2(y) of the Code of Criminal
Procedure, its branch Manager, who
presented the complaint, would be a
"public servant" and, as such, by virtue
of the decision of the Apex Court in the
case
of
National
Small
Industries
Corporation Ltd. V. State (NCT of Delhi)
(2009) 1 SCC 407 (vide paragraphs 16,
19 and 20 of the judgment) the benefit
of the proviso to Section 200 CrPC i.e.
exemption from examination of the
complainant and the witnesses, would
be available, even though Allahabad
Bank
(the
Company)
was
the
complainant.
Accordingly,
the
summoning order cannot be faulted on
this ground as well.
Case law discussed:
(2007) 7 SCC, 394; (2009) 1 SCC 407

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard learned counsel for the
revisionist and learned A.G.A for the
State.

2. By this revision application, the
revisionist has challenged the summoning
order dated 18.7.2012 passed by the First
Special Metropolitan Magistrate (1st
Class), Kanpur Nagar in Complaint Case
2 All] Sanjay Somani V. State of U.P. & another
945
No.2900 of 2012 (Old No.350 of 1995),
whereby
the
revisionist
has
been
summoned under section 138 of the
Negotiable Instruments Act, 1881.

3. The facts, as elicited from the
record, are that Allahabad Bank, a body
corporate constituted under the Banking
Companies (Acquisition & Transfer of
Undertakings) Act, 1970, on 6.2.1995,
instituted complaint, under section 138 of
the Negotiable Instruments Act, 1881,
against M/s Somani Investments and its
authorized
representative
/
signatory
Sanjay Somani (the revisionist). In the
complaint it
was
alleged
that
the
revisionist issued cheque no.309886,
dated
20.12.1994,
drawn
on
ANZ
Grindlays Bank, for Rupees four crores in
favour of the complainant as part payment
towards the adjustment of his liability.
The said cheque was presented for
collection of the cheque amount, on
31.12.1994. On 31.12.1994 itself, the
Bankers (ANZ Grindlays Bank) returned
the cheque unpaid with the remark "Refer
to
Drawer
(insufficient
funds)".
Consequently, demand notice was sent
under registered post on 13.1.1995, which
was served on 14.1.1995. On failure to
make payment within the statutory period
of 15 days, complaint was filed on
6.2.1995, with documents i.e. photocopy
of the concerned cheque, bank memo,
notice, postal receipt, etc. From the
certified copy of the order sheet, which
has been brought on record through a
supplementary affidavit dated 6.8.2012, it
appears that the Court registered the
complaint on 6.2.1995 itself and fixed
10.2.1995 for recording of statement
under section 200 CrPC. The order sheet
also discloses that on 21.2.1995 statement
under section 200 CrPC was recorded.
From Annexure 2 to the main affidavit, it
appears that statement of C.L. Maurya,
the branch Manager of the Complainant,
was
recorded,
who
supported
the
complaint case. After recording the
statement, under section 200 CrPC, on
21.2.1995, the court fixed a date for
arguments. Thereafter, it appears that the
case got adjourned for various reasons
and dates after dates were fixed in the
matter. According to the counsel for the
revisionist, the matter was delayed as the
original of the cheque concerned was not
produced. However, on 30.6.2012, an
affidavit of Jitendra Nath Trivedi, the
branch Manager, Allahabad Bank, was
filed, which disclosed that the original of
the cheque was handed over to the then
Complainant's counsel Sri Vinod Lal
Chandani, and since he is no more alive,
the original cannot be produced. The
court below finding that a prima facie
case punishable under Section 138 of the
Negotiable Instruments Act, 1881 was
made out against the revisionist passed
the impugned summoning order.

4. Challenging the summoning
order, the learned counsel for the
revisionist contended that the summoning
order cannot be passed after 17 years of
the presentation of the complaint. It has
been contended that the complaint was
filed on 6.2.1995 whereas the summoning
order was passed on 18.7.2012, therefore,
the proceedings should be deemed to be
barred by limitation. It has further been
submitted that in absence of the original
of the dishonored cheque, the court below
could not have acted upon the complaint
allegations and proceeded to summon the
revisionist. A feeble attempt was also
made to challenge the validity of the
summoning order on the ground that the
affidavit submitted by Jitendra Nath
Trivedi, who was not the complainant,
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
without his examination in Court, could
not have been relied upon.

5. As regards the contention that the
proceedings were barred by limitation, I
am of the view that if the complaint was
made within the period of limitation, the
complainant has done what he could do. It
is for the Court thereafter to proceed and
issue process. Accordingly, if the Court
delays
issuance
of
process
the
complainant cannot be penalized for the
delay on part of the Court. The Apex
Court in the case of Japani Sahoo Vs.
Chandra Shekhar Mohanty, reported
in (2007) 7 SCC, 394 held that the
relevant date, for computing the period of
limitation under Section 468 CrPC, is the
date on which the complaint is filed for
initiating criminal proceedings and not the
date of taking cognizance by a Magistrate
or issuance of process by a Court. While
holding as above, the apex court, in
paragraph 49 of the judgment in Japani
Sahoo (supra), observed as follows:

"49. Because of several reasons
(some of them have been referred to in the
aforesaid decisions, which are merely
illustrative cases and not exhaustive in
nature), it may not be possible for the
court or the Magistrate to issue process
or take cognizance. But a complainant
cannot be penalised for such a delay on
the part of the court nor can he be nonsuited because of failure or omission by
the Magistrate in taking appropriate
action under the Code. No criminal
proceeding can be abruptly terminated
when a complainant approaches the court
well within the time prescribed by law. In
such cases, the doctrine "actus curiae
neminen gravabit (an act of court shall
prejudice none) would indeed apply.
(Vide Alexander Rodger V. Comptoir D'
Escompte (1871) LR 3 PC 465: 17 ER
120). One of the first and highest duties of
all courts is to take care that an act of
court does no harm to suitors."

6. In the instant case, the complaint
was filed on 6.2.1995, after serving notice
of demand on 14.1.1995 (as per the
complaint allegations). The cause of
action to institute the complaint arose
when no payment was made within 15
days from the date of service. Thus, the
right to lodge the complaint accrued only
on expiry of 15 days to be counted from
14.1.1995. As the complaint was filed on
6.2.1995 that is, within 30 days from the
date of expiry of the 15 days notice, it was
well within the period of limitation
provided under clause (b) of Section 142
of the Negotiable Instruments Act, 1881.
In the circumstances, the proceedings are
not barred by limitation. Accordingly, on
this ground, the summoning order cannot
be faulted.

7. As regards the contention that in
absence of the original of the cheque the
Court could not have issued process, I am
of the view that at the stage of issuance of
process, the Court is required to see
whether a prima facie case is made out or
not.
Question
of
admissibility
and
reliability of secondary evidence is to be
tested and assessed at a later stage, when
challenge is made to the execution
/issuance of the concerned cheque. Thus,
the summoning order cannot be faulted on
this ground.

8. With regards to the submission
that the statement of Jitendra Nath Trivedi
could not have been relied, as he was
neither examined in Court nor he
presented the complaint, I am of the view
that this would not make a material
2 All] Committee of Management V. Direction of Education & Others
947
difference at the stage of summoning. It is
noteworthy that the complaint was
presented on behalf of Allahabad Bank,
which is a public sector bank constituted
under
the
Banking
Companies
(Acquisition & Transfer of Undertakings)
Act, 1970, which is a Central Act.
Moreover it is a Government Company
under section 617 of the Companies Act.
Therefore, by virtue of Section 21 clause
Twelfth of Indian Penal Code read with
Section 2(y) of the Code of Criminal
Procedure, its branch Manager, who
presented the complaint, would be a
"public servant" and, as such, by virtue of
the decision of the Apex Court in the case
of
National
Small
Industries
Corporation Ltd. V. State (NCT of
Delhi)
(2009)
1
SCC
407
(vide
paragraphs 16, 19 and 20 of the
judgment) the benefit of the proviso to
Section 200 CrPC i.e. exemption from
examination of the complainant and the
witnesses, would be available, even
though Allahabad Bank (the Company)
was the complainant. Accordingly, the
summoning order cannot be faulted on
this ground as well.

9. Before parting, the Court
expresses deep anguish at the prevailing
state of affairs that in a matter like this,
the court below took 17 years to issue
process, when the statement under section
200 CrPC, which was not even required
by law, was recorded 17 years back.
Matters
under
section
138
of
the
Negotiable Instruments Act, 1881 are to
be dealt with utmost expedition otherwise
the very purpose, for which the provision
was inserted in the Act, would stand
frustrated.

10. For the reasons mentioned
above, I do not find any illegality,
impropriety or jurisdictional error in the
summoning
order.
The
revision
application is, accordingly, dismissed.

11. The Registry is directed to send
a copy of this order to the court
concerned, within three weeks from
today, for information.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 11261 of 2000

Committee of Management Shri Narang
Sanskrit
Maha
Vidyalaya,
Ghughli,
Maharajganj

 ...Petitioner
Versus
Director of Education & others

 ...Respondents

Counsel for the Petitioner:
Dr.H.N.Tripathi

Counsel for the Respondents:
C.S.C.
Sri Anil Tiwari

U.P. State Universities Act, 1963-Section
60-D-Single operation order passed by
DIOS-without affording opportunity to
the
management-Sanskrit
Maha
Vidyalaya-only
Deputy
Director-heldcompetent to pass such order-held-order
without jurisdiction-quashed.

Held: Para 9

From a reading of the said provisions
there is no doubt that the power to
instruct
the
bank
that
the
Salary
Payment Account shall be operated by
the Dy. Director or by some other officer
duly authorised by him vests with the
Dy. Director of Education. There is
nothing
on
the
record
nor
is
it