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2012(1) Bankmann 269 (Del.)
DELHI HIGH COURT
Ajit Bharihoke, J.
M/s. Mithi Interior Pvt. Ltd.
and Ors. —Petitioners
versus
M/s. Esscon Engineers Pvt. Ltd.
and Ors. —Respondents
Criminal L.P. Nos. 136, 137, 139 of 2010 & Crl. M.A. Nos. 5095, 5096 and 5102 of 2010
Decided on 31.3.2011
Counsel for the Parties:
For the Petitioners:R.K. Thakur, Advocate.
For the Respondents:Aditya Gaur, Advocate.
Headnote:Negotiable Instruments Act, 1881—Section 138 and 6 Dishonour of cheque—Instruments which was returned unpaid by bank has to be a valid cheque—Acquittal on findings that cheque in question was not valid cheques in eye of law—Appeal—Mode of operation of bank account was joint by two Directors of the accused company—Petitioner complainant one of the authorised signatory for bank account operation had resigned w.e.f.31.3.2005 and mode of operation was changed—Cheque in question was signed by only one of joint signatories—Magistrate rightly found cheque not to be a valid cheque and acquittal judgment suffered no illegality.
Held: Shri Vivek, Executive of UTl Bank (now Axis Bank) Pitam Pura Branch deposed on the basis of the record of the bank account maintained in the bank by respondent No.1 company. He deposed that as per the instructions of respondent No.1 Company, mode of operation of its bank account was joint by two Directors of the company, namely respondent No.2 Shubhendu Shekhar and petitioner Mithilesh Jha. He further stated that on 31st March, 2005 petitioner Mithilesh Jha tendered his resignation as Director of the company and vide instructions letter dated 1st April, 2005 of the respondent No.1 Company, the mode of operation of the bank account of respondent No.1 was changed inasmuch as that the petitioner Mithilesh Jha was replaced as a joint signatory for operation of bank account by respondent No.3 Mukta Awasthi. Admittedly, the purported cheques on the basis of which complaints have been filed by the petitioner are signed by only one of the joint signatories namely respondent No.2 Mukta Awasthi. Since the aforesaid purported cheques do not bear the signatures of the second joint signatory, the aforesaid instruments do not qualify the definition of a valid cheque which could be acted upon by the bank in terms of the instructions regarding the mode of operation of the bank account. Thus, in my considered view, learned M.M. has rightly included that aforesaid instruments cannot be termed as validly drawn cheques and as such one of the most essential ingredients of offence under Section 138 NI Act is lacking in this case. Thus, he has rightly acquitted the respondents for the offence under Section 138 Negotiable Instruments Act. (Para 10)
Ajit Bharihoke, J. —Criminal M.A. No.5095 of 2010 in Criminal LP No. 136 of 2010 Cri MA No.5096/2010 in Crl.LP.No.137/2010, Crl. M.A. No.5102/2010 in Crl. L.P. No. 139/2010 Vide above applications, petitioners are seeking condonation of delay in filing of appeals against the dismissal of their respective complaints under Section 138 of the Negotiable Instruments Act (NI Act) vide common judgment dated 28.8.2009. Learned counsel for the respondent has no objection if the delay in filing of the appeals is condoned.
In view of the concession given at the Bar and the reasons given in the applications, delay in filing of the appeals against the impugned judgment is condoned.
Applications stand disposed of.
Crl.L.P,No.136/2010, Crl.L.P.No.137/2010, Crl.L.P.No.139/2010
Vide this order, I propose to dispose of three leave petitions being Crl.L.P. No.136/2010, CrI.L.P.No.137/2010 and Crl.L.P.No.139/2010 seeking leave to appeal against the impugned judgment of learned Metropolitan Magistrate dated 28.8.2009 vide which he dismissed the three complaints filed by the appellants/petitioners against the common respondents under Section 138 Negotiable Instruments Act (NI Act).
2. Briefly stated, allegations in respective complaints are that respondent No.1 is a private limited company and respondents No.2 and 3 are its Directors. It is alleged in the complaints that respondent No.1 company issued cheques in favour of the petitioner in discharge of the existing legal liability for the services rendered by the petitioner. Those cheques, when presented for encashment, were dishonoured by the drawee bank, namely, UTI Bank. The petitioner, on receipt of information regarding dishonour of the cheques, sent requisite demand notices under Section 138 NI Act to the respondents but the respondents failed to make the payment of the amount of those cheques despite service of demand notices within reasonable period. This led to filing of above three complaints under Section 138 NI Act against the respondents.
3. The defence taken by the accused persons in the said complaint was that the complainant earlier was one of the Directors of the accused company M/s. Esscon Engineers Pvt. Ltd. Being a Director, complainant also was one of the authorised signatories to operate the bank account of accused company along with accused/respondent No.2, namely, Shubhendu Shekher Awasthi. As respondent No.2 used to travel frequently in connection with the business of the company, some blank cheques signed by him were kept in the custody of the complainant. According to the accused persons, those cheques have been misused by the complainant after his resignation and the cheques in question were never issued in discharge of any debt or liability. The accused persons also claimed that on the retirement of the complainant as a Director of the accused company, instructions were issued to the bank withdrawing the name of the complainant as an authorised joint signatory in respect of bank account of the company and instead instructions were issued to the bank that the bank account of the company would be operated under joint signatures of respondents No.2 Shubhendu Shekhar Awasthi and respondent No.3 Ms. Mukta Awasthi who were inducted as Directors of the company. To prove this, the accused persons examined a witness from the bank as DW1.
4. Learned Metropolitan Magistrate, on consideration of evidence led by the parties dismissed the complaint mainly on the ground that as per the testimony of DW1 Shri Vivek, Executive UTI Bank vide resolution dated 1.4.2005, respondent No.1 company had appointed respondents No.2 and 3 as authorised signatories to operate its bank account jointly. However, the cheques forming basis of the complaints filed by the petitioner were signed only by one of the authorised signatories, thus, learned M.M. came to the conclusion that the cheques in question which formed basis for the trial of accused persons under Section 138 NI Act were not valid cheque
