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2008 Supreme(Del) 126
IN THE HIGH COURT OF DELHI AT NEW DELHI
Dr. S. Muralidhar, J.
M/S SIGNAPS and ANR. ..... Peitioners
Versus
M/S BUMPY UDYOG ..... Respondent
CRL.M.C. 2612/2003 and Crl M As 3489-90/2003
Decided on : February 5, 2008
Mr. Sudhanshu Batra with Mr. Bhuvan Gugnani, Advocate
Mr. Ravi Sharma, Advocate
The need for mutual written consent for extending agreements and the resolution of disputed facts at trial.
Headnote:
Section 138 NI Act - Quashing of Criminal Complaint - 1881 (NI Act) - Summary: The court discussed the validity of a cheque presented for payment in contravention of a security agreement and its implications under Section 138 of the Negotiable Instruments Act. The court emphasized the need for mutual written consent for extending the agreement and highlighted that disputed facts should be resolved at trial, not under Section 482 CrPC.
Fact of the Case:
The petitioners sought quashing of a criminal complaint under Section 138 NI Act regarding a dishonoured cheque, arguing that the cheque was offered as security in contravention of a prior agreement.
Finding of the Court:
The court found that the disputed facts regarding the cheque and the agreement's extension should be resolved at trial, and no grounds were made out for quashing the criminal proceedings under Section 482 CrPC.
Issues: Validity of the cheque presented in contravention of a security agreement, enforceability of clauses 12 and 13 of the agreement, and resolution of disputed facts at trial.
Ratio Decidendi: The court emphasized the need for mutual written consent for extending the agreement and highlighted that disputed facts should be resolved at trial, not under Section 482 CrPC.
Final Decision: The petition was dismissed, and no order as to costs was made.
Dr. S. Muralidhar, J. (open court)
1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 ( CrPC ) filed by the petitioners seeking quashing of Criminal Complaint No. 214 of 2002 (M/s. Bumpy Udyog v. M/s Signaps) pending in the court of the learned Additional Sessions Judge, Delhi ( ASJ ) and an order dated 28th May, 2003 passed by the learned ASJ dismissing the application for recalling of the summoning order dated 15th September, 2000 passed by the learned Metropolitan Magistrate, Delhi ( MM ).
2. At the outset, learned counsel for the Petitioners fairly states that in view of the judgment of the Supreme Court in Adalat Prasad v. Rooplal Jindal 113(2004) DLT 356 (SC) he cannot really challenge the impugned order of the learned ASJ declining to recall the summoning order and that the only remedy available to the accused is to challenge the summoning order by way of the present petition under Section 482 CrPC. He accordingly confines his arguments in the present case to questioning the summoning order and seeking the quashing of the criminal complaint.
3. The case of the complainant M/s Bumpy Udyog was that towards discharge of the liability of the Petitioner No.1 proprietary firm (of which Petitioner No.2 is the proprietor) towards supply of goods to it by the complainant, a cheque 413391 dated 14th December, 1999 for a sum of Rs.28,35,164.84 was drawn on The Greater Bombay Co-operative Bank Limited in favour of the complainant by the petitioners. The said cheque when presented to the bank for payment was returned dishonoured with the remarks Refer to Drawer as well as Please do not present again by the returning the memo dated 21st December, 1999. Thereafter the complaint was filed against the petitioners under Section 138 read with Section 142 of the Negotiable Instruments Act 1881 ( NI Act ) in the court of the learned MM, New Delhi.
4. According to the Petitioners here, the complainant has willfully suppressed in the complaint fact that there was a written agreement dated 3rd August, 1998 executed between the complainant and the Petitioners here which was for a period of one year initially and extendable for a further period on the mutual written consent of the parties. A reference is made to clauses 12 and 13 of the said agreement which read as under: 12. That the party of the 2nd part will deposit 5 Blank Cheque No. 413390, 413391, 413392, 413393 and 413394 of the Greater Bombay Co-operative Bank Limited, Bhuleshwar Branch, Mumbai 400 002 which is given to the 1st party as a security of the Agency Agreement. 13. Further more the 1st party shall not deposit the above said cheques until and unless a written instruction is received from the party of the 2nd part. 5. It is contended by learned counsel for the Petitioners that in reply to the application filed by the Petitioners for recalling the summoning order dated 15th September 2000 passed by the learned MM, the Respondent did not deny the fact of the agreement. On the other hand, the complainant took the following inconsistent stand in paras 1, 2 and 2(a): 1. That an agreement was executed between the complainant and the accused on 3rd August, 1998 and as per para 2 of the said agreement, it is stated that the term of the agreement is only for one year initially. However, by virtue of mutual written consent of the parties, the term can be extended for another period after the expiry of one year. That as per the default of the accused, the agreement was neither renewed nor was extended for another year and therefore, the said agreement with regard to Clauses 12 and 13 has got no effect. 2. That as per the trade practice the security cheques which were given by the accused to the complainant were deposited after the expiry of the said agreement and that too on 14.12.1999. The said security cheque was presented only when despite of numerous visits by the complainant and calls made by the complainant to the accused for the balance payment,
