IMPORTANT POINT
Dishonour of cheque—Section 141 of Negotiable instruments Act prima facie makes every person incharge and responsible to company for conduct of business of company liable.

JUDGMENT

Rashid Ali Dar, J.—The petitions detailed above raised common and akin questions of facts and law and have therefore been clubbed together for common decision.

2. Filed under Section 561-A Cr. PC, the petitioners crave the indulgence of this court in quashing the order dated 03-05-2018 (for short impugned order) passed by the learned Magistrate by virtue of which learned Magistrate has taken cognizance of the matter and directed issuance of process against the petitioners under Section 138 Negotiable Instrument Act read with Section 420 RPC

3. Facts giving rise to the filing of the instant petitions as referred by the petitioners are that:

(i) The respondent (Shri Anil Bhan) on the strength of the cheques bearing No. 000142 payable at HDFC Bank dated 01-01-2017 for an amount of Rs 20 lacs, cheque bearing No. 110240165 payable at HDFC Bank dated 01-01-2017 for an amount of Rs 02 crores and cheque bearing No. 000141 payable at HDFC Bank dated 01- 01-2017 for an amount of Rs 35 lacs presented the same before the banker i.e. J&K Bank Branch High Court complex Srinagar and sought its payment. The respondent (Anil Bhan) on the strength of the memo received from the bank about non-availability of the funds on the required date proceeded to file a complaint under Section 138 Negotiable Instrument Act read with Section 420 RPC.

(ii) The case set up by the respondent (Shri Anil Bhan) as contended in the body of the complaint is that he had entered into an agreement with the M/s Spectratek Exclusive Print (India) Pvt. Ltd in terms whereof he was entitled to receive legal fee towards rendering of professional services to the accused company. The complainant has further contended that the total monthly emoluments/retainer-ship payable in his favour on account of rendering legal advice and professional services was fixed at Rs. 4+4+2 lacs per month and in this connection reliance was placed upon three agreements details whereof are indicated as under:

(a) Spectratek Exclusive print retainer ship fee was Fr. 4 lacs per month from 01-01-2014 to 31-01-2015.

(b) Spectrum Techno Projectes fees was Rs. 4 lacs from 01-01-2015 to 31-12-2015.

(c) Spectrum Techno projects retainer-ship fee was Rs. 2 lacs from 01- 04-2015 to 31-03-2016.

(iii) The complainant further contended that the accused companies had through its Director Pankaj Jangira agreed to pay the monthly remuneration towards the retainer-ship at rate of Rs. 02 lacs per month but no written agreement supporting that contention was placed on record or referred to. The complaint further contended that part of the money towards retainer-ship fee was paid to him and upon computation an amount of Rs. 03 crores remained unpaid by the accused towards retainer-ship fee payable to the complainant. The complainant further contended that the settlement was arrived at with accused Pankaj Jangira in the first week of September 2016 in presence of one Lalit Bhaderwaj who is one of the Directors of the company. It is further alleged that the amount settled for payment was fixed at Rs. 3.25 crores payable to the respondent No. 5 on account of outstanding fee towards retainer-ship and legal fee. It is further contended that accused Pankaj Jangira had issued two cheques one of Rs. 02 crores and another for Rs. 35 las to liquidate the liability arising of the balance amount towards retainers-ship and legal fee.

(iv) It is submitted that prior to the filing of the complaint pending adjudication before the court of Chief Judicial magistrate, Srinagar the respondent no. 5 (Anil Bhan) had filed an identical complaint before the Judicial magistrate Srinagar and issuance of process by the Judicial Magistrate was called in question before this Court in proceedings under Section 561-A Cr. PC. This court while considering the matter came to the conclusion that the complaint had been filed pre-maturely as the time prescribed under Negotiable Instrument Act for filing a complaint post issuance of notice