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DELHI HIGH COURT
J.B. Goel, J.
Dsa Engineers (Bombay) & Ors. -Petitioners
versus
Mis. U.E.M. India Pvt. Ltd. -Respondent
Crl. M. (M) No. 126-97
Decided on 3-5-1999
Counsel for the parties:
For the Petitioners: Mr. G.N. Aggarwal, Advocate.
For the Respondent: Mr. Ashok Mathur, Advocate.
IMPORTANT POINTS
1. Notwithstanding that drawer of cheque had issued notice to drawee or to the bank for stoppage of payment Section 138 of Negotiable Instruments Act gets attracted.
2. Successive presentation of dishonoured cheque is allowable under Section 138 of Negotiable Instruments Act during period of its validity but cause of action for filing complaint arises only when alter dishonour of cheque a notice is given.
3. Trial of Criminal cases cannot be stayed only for reason that a civil suit involving identical dispute is pending between parties.
Headnote:(i) Negotiable Instruments Act, 1881 - Sections 138 and 142 Dishonour of cheque - Petition to quash complaint-- Plea that petitioner No.4 was not the partner of firm petitioner No. 1 - Complaint specifically pleaded that petitioners 2 to 4 were its partners and were in-charge of and responsible to firm for conduct of its business - Reply to demand notice on dishonour of cheque was given on behalf of all partners No. 2 to 4 - Proceedings were not liable to be quashed –Another plea that no payment was due could not be gone into in view of presumption under Section 139 of the Act. (Paras 7 to 9)
(ii) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque -- Cheque was presented after notice for stopping payment - Section 138 of the Act still gets attracted. (Para 11)
(iii) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Successive presentation of cheque is allowable during period of its validity - Cause of action for complaint arises only when after dishonour a notice is given. (Para 12)
(iv) Negotiable Instruments Act, 1881- Section 138 - Cheque for Rs. 3,37,438 dishonoured - Complaint for offence - Petition for stay of criminal proceedings on plea that petitioner had already filed a recovery suit for Rs. 61,041/- as amount due under transaction was in dispute and petitioner alleged overpayment - Principles governing stay of one of two proceedings - If criminal proceedings are stared it will defeat the very purpose of the enactment. Possibility of conflicting decisions in civil and criminal courts in it self can not be a relevant consideration for stay of one of the two proceedings. There should be some special circum. stances to warrant stay - No valid ground found existing for stay of proceedings. (Paras 15, 19 to 21)
Result: Petition dismissed with costs Rs. 20,000/-.
J.B. Gaol, J. - This petition under Section 482 of the Code of Criminal Procedure (for short "the Code") and Article 227 of the Constitution of India has been filed by the petitioners (accused) for quashing the complaint filed by the respondent for offence under Sections 138/141/142 of the Negotiable Instruments Act (for short “the Act") and the orders of summoning dated 19-8-1996, 6-12-1996 and 10-1-1997 passed thereon by the learned M.M.
2. Petitioner No. 1, a partnership firm and petitioners No. 2 to 4 as its partners have been arrayed as accused Nos. 1 to 4 in the complaint.
3. Briefly, the facts are that the respondent-complainant in its complaint under Section 138 of the Act has alleged that in the month of May 1994, the accused had placed an order upon it for the design, supply, erection installation and commissioning of Sewage Treatment Plant for Hotel Trident at Ahmedabad for a consideration of Rs. 13,25,000/-, that during the execution of the work the complainant had been raising bills from time to time but the payments were not made and were being avoided by adopting delaying tactics and then on 10-11-1995 a cheque bearing No. 339438 dated 25-11-1995 for a sum of Rs. 3,37.438/-, drawn on State Bank of India. Nehru Place, New Delhi branch in favour of the complainant as part payment of their dues was given. The cheque was presented through its banker but was returned unpaid on 27-11-1995 with the remarks “Refer to drawer". On being informed the accused expressed regrets being in financial crisis and asked the respondent to wait for some time. The cheque was again presented on 27-12-1995 but was again dishonoured on 29-12-1995 with the remarks "payment stopped by the drawer" A legal notice dated 6-1-1996 was served on the accused persons which was acknowledged by them in their reply dated 27-1-1996 but the payment was not made. And the complaint' was filed on 12-2-1996.
4. After recording evidence the learned Magistrate found prima facie case to proceed and summoned the accused. They did not appear on 2-3 dates in spite of warrants issued against them and filed this petition for quashing the criminal proceedings.
5. The petitioners inter alia have alleged that petitioner No.4 is not a partner of petitioner No. 1 and has been improperly impleaded; there is no cause of action as the amount mentioned in the cheque is not due and on the other hand over payment has been made for which a civil suit has been filed by the petitioners on the facts and the circumstances no case under Section 138 of the Act is made out and the complaint is liable to be quashed. Respondent in its reply has denied the averments made.
6. I have heard learned counsel for the parties.
The first contention is that petitioner No.4. Mr. D.M. Singh, is not a partner and the complaint against him is not maintainable. D.M. Singh is accused No.4 in the complaint. In para 3 of the complaint, it has been pleaded that accused No. 1 is a partnership firm and accused Nos. 2. 3 and 4 are its partners in charge of and responsible to the said firm for the conduct of its business. In the present petition, it is alleged that petitioner No.4 is not a partner of petitioner No. 1. In the counter filed by the respondent, it is pleaded in para 4 as under:
" ………It is denied that the petitioner No.4 is not the partner in petitioner No. 1 firm. The petitioner No.4 is a partner in this firm is established by letter dated 22-11-1995 signed by him as partner in this firm. Even otherwise the petitioner No.4 is a responsible person of the petitioner No. 1 as is also evident from the facts that most of correspondence and dealings are made by him with respondent No. 1. It is further submitted that the present petition has also been filed by petitioner No.4 and also deposed in his affidavit that he is well aware of the facts and circumstances of the case."
7. In rejoinder filed on behalf of the petitioner, these facts have not been refuted: Petitioners have placed on record some
