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2015 Supreme(Del) 4043
DELHI HIGH COURT
Manmohan Singh, J.
Omway Build Estate Private Limited & Ors. - Appellant
Versus
Ravi Sharma & Anr. - Resopndent
Crl. M.C. No. 705 of 2015 and Crl. M.A. No. 2702 of 2015, Crl. M.C. No. 5731 of 2014, Crl. M.A. Nos. 19563 of 2014 and 1699 of 2015, Crl. M.C. No. 5746 of 2014 and Crl. M.A. No. 19584 of 2014
Decided On : 08-07-2015
For the Petitioners:Mr. Meet Malhotra, Sr. Adv. with Mr. Ashish Aggarwal, Advocate.
For the Respondents:Mr. Jagdeep Sharma, Adv. with Mr. Misbah Bin Tariq, Advocate.
Headnote:
Negotiable Instruments Act - Dishonour of Cheques - Section 138 - 138 of the Negotiable Instruments Act 1881 - Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instruments Act, 1881 and its interpretation in light of the facts of the case. The court also referred to legal principles established in the cases of S.M.S. Pharmaceuticals v. Neeta Bhalla and National Small Industries Corp. Ltd. v. Harmeet Singh Paintal, emphasizing the necessity of specific averments in a complaint under Section 141 and the requirement to show how the accused person is responsible for the dishonour of the cheque.
Fact of the Case:
The case involved multiple petitions filed for quashing of criminal complaints under Section 138 of the Negotiable Instruments Act, 1881. The complaints were related to the dishonour of cheques issued by the petitioners, who were directors of a construction company. The petitioners argued that the cheques were not their personal liability and that the dishonour was beyond their control due to court orders.
Finding of the Court:
The court found that the petitioners' defense of the dishonour being beyond their control due to court orders was not valid. It also noted the ongoing cross-examination of the respondent for about 4 years and directed the trial court to consider the relevant plea raised by the petitioners at the final stage of the complaint on merit after trial.
Issues: The issues included the liability of the petitioners under Section 138 of the Negotiable Instruments Act, 1881, the interpretation of their responsibility as directors, and the impact of court orders on the dishonour of the cheques.
Ratio Decidendi: The court's decision was based on the finding that the defense of the dishonour being beyond the petitioners' control due to court orders was not valid. It also emphasized that the relevant plea raised by the petitioners should be considered by the trial court at the final stage of the complaint on merit after trial.
Final Decision: The court disposed of the petitions with the direction that the relevant plea raised by the petitioners shall be considered by the trial court at the final stage of the complaint on merit after trial. The interim order exempting Mrs. Neelam Goyal from personal appearance was to continue till the disposal of the complaint.
Manmohan Singh, J.:
1. Two petitioners, namely, Omway Build Estate Pvt. Ltd. and Janak Goel have filed the first petition being Crl. M.C. No. 705/2015 under Section 482 Cr.P.C for setting aside the order dated 10th February, 2015 passed by the Metropolitan Magistrate, Saket District Court Complex, New Delhi in Criminal Complaint No. 870 of 2014 titled as ‘Ravi Sharma Versus Omway Buildestate Private Limited and others’; for quashing of Criminal Complaint No. 870 of 2014; and for stay of Criminal Complaint No. 870 of 2014 till stay/ status quo orders are not vacated against the assets of the company. The impugned order was passed in the complaint filed by the complainant/respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The relevant extract of the complaint is reproduced hereinabove:
“2. That the Accused Nos. 2 and 3 are the Directors of the Accused No. 1 Company (the “Company”), which has its registered office at 3 - LSC, Shadra Chamber, K Block, Kalkaji, New Delhi -110019 and are the persons in charge and responsible for the Company’s business and its day to day affairs. The Company is in the business of construction and building development.
3. The present Complaint arises on account of the dishonour of two cheques for Rs. 7,50,00,000/- (Rupees Seven crores fifty lakhs only) and Rs. 1,68,43,562/- (Rupees One crore sixty eight lakhs forty three thousand five hundred and sixty two only) issued by the Accused No. 2 on behalf of the Company and Accused No. 3 in favour of the Complainant. Brief Facts leading to the present Complaint are as follows:
4. The Accused No. 2 being known to complainant had approached the Complainant in the month of January 2010 for a loan of Rs. 7,50,00,000/- (Rupees Seven crores fifty lakhs only) for a period from 20.01.2010 to 31.05.2010 which may be extended upto 30.09.2010 with interest thereon for the said period. Thereupon, the Company and the Complainant entered into an agreement dated 20.01.2010 (“Loan Agreement”) a copy of which is exhibited hereto and marked as Annexure C-1. In terms of the Loan Agreement the Complainant loaned Rs. 7,50,00,000/- (Rupees Seven crores fifty lakhs only) to the Accused Nos. 1 to 3 by way of four (4) cheques bearing Nos. 553934, 553935, 553936 and 553937 all dated 18.01.2010, for a period from 20.01.2010 to 31.05.2010 which may be extended upto 30.09.2010, along with interest thereon. The said Cheques were duly encashed by the Company.
5. Under the Loan Agreement the Company agreed that the Company would issue post dated cheques as security for re-payment of the loan amount along with interest thereon, which would be presented for payment if the Company defaults in the re-payment of the loan amount and interest thereon. The details of the two cheques issued in favour of the Complainant by the Accused Nos. 1 to 3 under the Loan Agreement, are as follows:
(i) Cheque No. 504082, dated 30.09.2010 drawn on Bank of Baroda, for an amount of Rs. 7,50,00,000/- (Rupees Seven crores fifty lakhs only) towards payment of the principal amount. A copy of Cheque No. 504082 dated 30.09.2010 is annexed hereto and marked as Annexure C-2.
(ii) Cheque No. 504083, dated 30.09.2010 drawn on Bank of Baroda, for an amount of Rs. 1,68,43,562/- (Rupees One crore sixty eight lakhs forty three thousand five hundred and sixty two only) towards payment of interest on the principal amount. A copy of Cheque No. 504083, dated 30.09.2010 is annexed hereto and marked as Annexure C-3.
6. That the Accused No. 2 despite making Accused Nos. 1 to 3 defaulted in repayment of the total repayment of the total principal amount and the interest thereon, within the period i.e. by 31.05.2010 or the extended period i.e. by 30.09.2010 at the most, despite requests being made by the Complainant.
7. In view of the above, the two Cheques drawn by the Company in favour of the Complainant on an account maintained by the Company, with the Bank of Baroda, Lajpat Nagar Bran
