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DELHI HIGH COURT
K.S. Gupta, J.
Smt. Sunaina R. Mathani - Petitioner
versus
National Capital Territory of Delhi & Ors. -Respondents
Crl. M. (M) No. 1409 of 2001
Decided on 16-9-2001
Counsel for the parties:
For the Petitioner: Sh. S.S. Gandhi, Sr. Advocate with Sh. Sandeep Mittal, Sh. Arunabh Choudary, Sh. Ankur Chawla and Sh. H. Barwah, Advocates.
For the Respondent No.1: Sh. V.K. Malik, Advocate.
For the Respondent NO.2: Ms. Sangeeta Saxena. Advocate.
IMPORTANT POINT
Proceedings under Section 138 Negotiable Instruments Act cannot be quashed in a petition under Section 482, Cr.P.C. on a plea that petitioner director of the accused company had resigned much prior to cause of action had arisen for the case.
Headnote:(i) Negotiable Instruments Act, 1881 - Sections 138 & 142 - Petitioner summoned for offence of dishonour of cheque - Contention that demand notice was Issued after expiry of 15 days of receipt of information from bank - Cheque was returned unpaid vide memo dated 161-1998 and complainant received it on 10th February 1998 – Legal notice was issued on 17-2-1998 Contention was liable to be repelled.
(ii) Negotiable Instruments Act, 1881 - Sections 138 and 141 Offence of dishonour of cheque Quashing petition on plea that petitioner director of accused company had resigned w.e.f. 1-41997 as per certified copy of Form No. 32 issued by Registrar of Companies and cheque was dishonoured in January 1998 - Cheque in question was issued post dated Post dated cheque becomes cheque on the date which is written on it Plea that petitioner had resigned before cause of action arose in the case could be looked into by trial court and no investigation was supposed to be done by High Court in proceedings under Section 482, Cr.P.C. - Complainant specifically pleaded that petitioner along with other accused was incharge of and responsible for running of affairs of accused Co- Proceedings could not be quashed. (Para 5)
Result: Petition dismissed.
K.S. Gupta, J. - In this petition filed under Section 482 Cr.P.C. the prayers made are as under:
(a) call for the records of the case in Complaint Case No. 454 of 1998, pending before the Court of Sh. V.K. Goel, Metropolitan Magistrate, Patiala House Courts, New Delhi and after examining the same this Hon'ble Court may be pleased to quash the said proceedings;
(b) quash the non-bailable warrants of arrest issued against the, petitioner on 2.11.2000 and 15.1.2001 by the Court shri V.K. Goel, Metropolitan Magistrate, Patiala House, New Delhi in Complaint Case No. 454 of 1998.
(c) pending the hearing and final disposal of the present petition by, further proceedings before the learned Trial Court in Complaint Case No. 454 of 1998 be stayed;
(d) pending; the hearing and final disposal of the present petition the execution of the non-bailable warrants of arrest issued against the petitioner in Complaint Case No. 454 of 1998 be stayed;
(e) pass exparte ad-interim order/orders in terms of prayers (a) (b) (c) (d) above."
2. While issuing notice to respondents for 2nd August, 2001 in Cri. M. 1634/2001 the execution of nonbailable warrants against the petitioner was stayed for four weeks to enable her to appear before the trial Court and apply for bail by the order dated 23rd April. 2001. Petitioner has since been admitted to regular bail by trial Court. With the stay of execution of non-bailable warrants and petitioner having been admitted to bail the prayers at (b) and (d) have been rendered infructuous.
3. In support of prayer at (a) above the submission advanced by Sh. S.S. Gandhi for petitioner was twofold (i) notice of demand dated 17th February, 1998 on behalf of respondent No.2 company was issued much after the expiry of stipulated period of 15 days of the receipt of information by the company from bank regarding return of cheque in question as unpaid and (ii) petitioner had resigned as director of respondent No. 3/ accused No.1 company with effect from 1st April, 1997. It was pointed out that on the post dated cheque in question the date written is 22nd December, 1997. Attention was also drawn to the certified copy of Form No. 32 (at pages 19 & 20) issued by the Registrar of Companies, Maharashtra wherein the petitioner is shown to have resigned as director w.e.f. 1st April, 1997.
4. Coming to first submission, copy of complaint filed under Sections 138 read with 141 and 142 of the Negotiable Instruments Act (for short the, 'Act') and Section 420 read with 120/34 IPC filed by respondent No. 2/ complainant is at pages 21 to 31 on the file. It is alleged in this complaint that parties entered into a Hire Purchase Agreement dated 24th January, 1995 and accused persons agreed to repayment structure as per the Schedule annexed thereto. Postdated cheque No. 383210 for Rs.3.32.500/ dated 22nd December, 1997 drawn on Bank of India. Overseas Branch, Mumbai was issued by accused company towards hire purchase instalments/ delayed payment charges to the complainant. On presentation the cheque was returned unpaid vide memo dated 16th January, 1998 containing the remarks 'refer to drawer'. Cheque together with memo was received by the complainant on 10th February, 1998. Thereafter, complainant sent legal notice dated 17th February, 1998 calling upon the accused persons to pay the amount of cheque together with future interest etc. Despite service of notice the accused failed to make payment of the demanded amount. To be noted that the notice dated 17th February, 1998 was issued within 15 days of alleged receipt of intimation by the complainant from the bank regarding return of said cheque as unpaid on 10th February, 1998. Thus, first submission is repelled being without any merit.
5. Adverting to said second submission, in the decision in Anil Kumar Sawhney v. Gulshan Rai1, it was held by the Apex Court that post dated cheque becomes cheque under the Act on the date which is written on it and six months period is to be reckoned for the purpos
