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2009(1) Bankmann 172 (Del.)
DELHI HIGH COURT
V.B. Gupta, J.
M/s Hindustan Cables Ltd. and
Ors. —Petitioners
versus
State Govt. of NCT of Delhi
and Ors. —Respondents
Criminal Misc. Case No. 3633 of 2007
Decided on 12.3.2008
Held: As regards the argument that the petitioner company has been declared sick by the BIFR and the company/promoters were restrained u/s. 22A of SICA not to dispose of any fixed or current assets without the consent of the secured creditors and the BIFR, the facts of the present case show that despite that restraint order, the BIFR passed directions to the petitioner company to make the payments for the running of the day-to-day business of the petitioner company. The payment made by the petitioner company to the Respondent No. 2 and M/s Shakun Polymers Ltd. also establish that there was no restraint order passed against the petitioner company by BIFR barring the payment of its liability to its customers/suppliers for the running of day-to-day business. In the explanation to the section clarification is made that the phrase “debt or other liability” means a legally enforceable debt or other liability.
Further, the petitioner company had taken a written undertaking from the respondent No.2 that the cheque in question would not be presented for encashment in the bank without the consent of the petitioner company yet the revalidation letter has concealed about the restraint order made by the BIFR. Furthermore, there is no dispute that the present cheque was with respect to supply of the goods on 13.02.2002, i.e., subsequent to the reference made by the petitioner company to the BIFR. These transactions were not restrained by BIFR.
In these facts and circumstances, the purported undertaking was avoidable under Section 19 of Indian Contract Act since there was concealment of facts on the part of the petitioner company. Keeping in mind the above discussions, the matter in dispute is a triable issue and can only be decided after placing the evidence before the Trial Court and the complaint cannot be quashed under Section 482, Cr.P.C.
As observed by the Supreme Court in Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd., 2000 (2) SCC 745, if the company is sick and a restraint order has been passed by the BIFR, it would be open to the aggrieved party place relevant material in this regard before Ld. Magistrate before whom the case is pending and the said Magistrate will examine the matter. Analyzing the scope and ambit of the provisions of Sections 22 and 22A of the SICA, their Lordships have held that Section 22 of the SICA dose not create any legal impediment for instituting and proceeding with the criminal case on the allegations of an offence u/s. 138 of the Negotiable Instruments Act against a company or its Director. However, Apex Court observed that it will depend on the facts and circumstances of the case whether in such circumstances the proceedings could be instituted or not.
Therefore, no exception can be taken against the order of the Magistrate taking cognizance of offence under Section 138 against the Petitioners. Undisputedly the cheques were drawn by the petitioners for payment of certain amount of money due to respondent No. 2 from the account in the Bank and the said cheque was dishonored by the Bank and the amount remained unpaid even after lapse of 15 days from the date of notice issued by respondent No. 2 after the cheque was dishonored. Therefore, the ingredients of Section 138 of the Act being prima facie, established from the complaint and the documents filed it with, the Magistrate rightly took cognizance of the offence and issued summons to the petitioners. (Paras 23 to 27)
Result: Petition dismissed.
V.B. Gupta, J.— The present petition has been filed under Section 482 Cr.P.C. vide which the petitioners have challenged the summoning order dated 14th August, 2003 passed by the learned Metropolitan Magistrate, in complaint Case No. 315/1/03 (Manish Industries. v. Hindustan Cables Limited and others) under Section 138/141 of the Negotiable Instruments Act (for short as ‘Act’) and also for setting aside of the order dated 24th August, 2004, passed by the learned Magistrate rejecting the prayer and application of the petitioners for dropping the proceedings and also for setting aside of the order dated 19th January, 2005 passed by the learned Additional Sessions Judge, dismissing the Criminal Revision Petition filed by the petitioners.
2. Brief facts of this case are that Petitioner Company; M/s, Hindustan Cables Ltd., Calcutta (for short as HCL) is a Govt. Company. Petitioner Company issued a cheque in favour of the Respondent No. 2, towards the supply of goods on 20.4.2002. At the request of Respondent No. 2, the aforesaid cheque was revalidated on 19.10.2002 for six months. At the request and insistence of the Respondent No. 2, the aforesaid cheque was once again revalidated on 18.04.2003, subject to the condition that the same will be presented after confirmation from Petitioner Company. When the aforesaid cheque was presented for payment, the same was dishonored by the banker of the petitioner on the ground of “exceeds arrangement” in the account of the petitioner and the same was communicated to the Respondent No. 2 by their banker on 29.05.2003. Then Respondent No. 2 sent statutory legal notice under Section 138 read with Section 141 of the Act to the petitioner company informing about the dishonor of the cheque in question and demanding payment of the amount covered by the cheque within fifteen days from the date of receipt of the said notice
3. In response to the aforesaid statutory legal notice, petitioner company replied that the respondent No. 2 suppressed the material fact that the cheque was issued subject to the condition that same would be presented after getting confirmation from HCL and BIFR had declared petitioner company as sick unit, vide order dated 21.03.2003 and hence if the Respondent No. 2 would proceed further, he would do so at his own cost and risk.
4. Respondent No. 2 thereafter filed the complaint u/ss. 138/141 of the Act read with Ss/420/120B IPC against the HCL and 13 others in the Court of the Metropolitan Magistrate, Delhi. The Magistrate took cognizance of the offence and issued summons against the accused persons.
5. The Ld. Metropolitan Magistrate vide order dated 24.08.2004 held that the accused is a company incorporated under Companies Act and the accused No. 2 to 5 were Public Servants within the meaning of Section 21 of the Indian Penal Code, their prosecution was not maintainable without the written sanction as required under Section 197, Cr.P.C. Thus, the Ld. Metropolitan Magistrate dropped the proceedings against accused No. 2 to 5 for want of sanction. However, he rejected the application in respect of the remaining accused persons (Petitioners) and directed them to appear in person on the next date of hearing on 27.10.2004.
6. Aggrieved thereby the Petitioners filed a Revision Petition before the Sessions Judge. The Ld. Additional Sessions Judge observed that in view of the judgment passed by the Supreme Court in Adala Prasad v. Rooplal Jindal and others1 and Subramanium Sethuraman v. State of Maharashtra and another2 the only course of action available to the accused/petitioners by way of filing a Petition under Section 482, Cr.P.C. before this Court against the order of the Ld. Metropolitan Magistrate relating to the summoning order. Accused person have got no right to ask recalling of the summoning order either directly/indirectly was of filing the Revision Petition; hence, dismissed the said-Revision Petition being not maintainable in the eyes of law, without entering into
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