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Delhi High Court
I.S. Mehta, J.
Kirti Premraaj Jain and Anr. —Petitioners
versus
Moser Baer Clean Energy Ltd. and Anr. —Respondents
Decided on 31.1.2017
For the Petitioners:Ms. Geeta Luthra, Sr. Advocate with Mr. Jivesh Tiwari and Mr. Prateek Yadav, Mrs. Hurainn S. Dholkawalla and Mr.Virender Singh Hooda, Advocates
For the Respondent No.1:Mr. Vikas Pahwa, Sr. Advocate with Mr. Vineet Arora and Mr. Aditya Dogra, Mr. Kinnori Ghosh Advocates
In CRL.M.C. Nos.3465 and 3569 of 2014 and CRL.M.A. No.11971 and 12286 of 2014
For the Petitioners:Ms. Geeta Luthra, Sr. Advocate with Mr. Jivesh Tiwari and Mr. Prateek Yadav, Mrs. Hurainn S. Dholkawalla and Mr.Virender Singh Hooda, Advocates
For the Respondent No.1:Ms. Sima Gulati and Mr. S.P. Mukherjee, Advocates
Important Point
DISHONOUR OF CHEQUES—CIVIL AND CRIMINAL PROCEEDINGS CAN RUN SIMULTANEOUSLY.
Headnote:CRL.M.C. No.3462, 3465 and 3569 of 2014 and Crl.M.A.No.11961, 11971 and 12286 of 2014
Negotiable Instruments Act, 1881—Sections 138/141/142—Dishonour of cheques—Criminal prosecution—Civil and criminal proceedings can run simultaneously—Proceedings under Section 138 read with Section 142 and Section 142 of NI Act are criminal proceeding which respondent/creditor is initiating qua against present petitioners for wrongful act on part of petitioners—Standard of proof in criminal proceeding is higher than that of a civil proceeding which gives platform to creditor to run criminal as well as civil proceedings parallely—Petitions dismissed. (Paras 48, 50 and 67)
Result: Petitions dismissed.
I.S. Mehta, J.—Instant petitions are arising out of the summoning orders dated 10.04.2013 and its subsequent notices dated 05.04.2014 passed in:
i. C.C. No. 550/1
ii. C.C. No. 561/1
iii. C.C. No. 486/13
and the petitioners aggrieved from the aforesaid summoning orders and notices preferred the present petitions under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing and setting aside the aforesaid issuance of summons and notices.
2. The brief facts stated are that the respondent/complainant company, i.e., Moser Baer Clean Energy Ltd., filed three complaints, i.e., (i) C.C. No. 550/1, (ii) C.C. No. 561/1 and (iii) C.C. No. 486/13, qua against the petitioners under Section 200 Cr.P.C. before the Court of learned ACMM, Saket District Courts, New Delhi for the offence committed under Sections 138/141/142 of the Negotiable Instruments Act, 1881 on dishonouring of the three cheques , i.e., (i) cheque no.069316 of Rs. 2,00,00,000/-, (ii) cheque no. 069318 of Rs. 1,00,00,000 and (iii) cheque no. 091922 of Rs. 2,00,00,000, drawn on Corporation Bank, Alkapuri Branch, Vadodara.
3. The petitioner(s) entered into two Memorandum of Understandings (MoUs) dated 02.05.2011 and 28.06.2011 with the respondent/complainant company as Land Arranger and subsequently a Minutes of Meeting (MoM) dated 17.12.2011 was signed between the parties.
4. The first MoU was executed on 02.05.2011 for the purchase of 550 acres of land and the second MoU was executed on 28.06.2011 for the purchase of 300 acres of land between the parties. In consequence of the representation made by the petitioners the respondent/complainant company paid to the petitioners a total amount of Rs. 7,30,00,000/- as advances which were repayable if not adjusted from the deed amount proportionally.
5. The petitioner Mr. Kriti Premraaj Jain in his individual capacity being the guarantor for securing the advances paid to them by the respondent/complainant company, issued two undated cheques in favour of the respondent/complainant company, i.e., cheque no.069316 of Rs. 2,00,00,000/- and cheque no. 069318 of Rs. 1,00,00,000/- drawn on Corporation Bank, Alkapuri Branch, Vadodara in terms of MoU dated 02.05.2011 and further issued one cheque bearing cheque no. 091922 of Rs. 2,00,00,000/- drawn on Corporation Bank, Alkapuri Branch, Vadodara in favour of the respondent/complainant company in terms of the second MoU dated 28.06.2011.
6. Thereafter, when the petitioners failed to discharge their obligations for obtaining bonafide industrial use permission/Non Agricultural (NA) use permission as per the applicable provisions under law in terms of the MoUs dated 02.05.2011 and 28.06.2011, the respondent/complainant company started taking action against the petitioners, resultantly, a Minutes of Meeting (MoM) dated 17.12.2011 was signed between the parties and the said three cheques which were issued by the petitioner(s) were presented for its encashment on 15th February, 2013 but the cheques were returned dishonoured vide dishonour memo dated 16.02.2013 with the remarks “Insufficient Funds” in cheque no. 069316 of Rs. 2,00,00,000/- and “Payment stopped by the drawer” in cheque no. 069318 of Rs. 1,00,00,000/- and cheque no. 091922 of Rs. 2,00,00,000/-.
7. Consequently, the respondent/complainant company issued legal demand notices dated 26.02.2013 which was duly served upon the petitioner(s). The petitioner(s) replied to the said legal demand notice on 12.03.2013. However, when the petitioner(s) failed to make the payment despite expiry of 15 days notice period, the respondent/complainant company was constrained to file three separate complaints under Section 138 read with Section 141 and Section 142 of the NI Act in the Court of Additional Chief Metropolitan Magistrate, Saket District Court, New Delhi.
8. It is pertinent to mention here that vide orders dated 10.04.2013 the learned MM took cognizance of the offence punishable under Section 138 of NI Act aga
