Back
2021 Supreme(Del) 114
IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KUMAR KAIT, J.
Shyam S. Bageshra – Petitioner
Versus
State NCT of Delhi and Others – Respondents
Crl. M.C. No. 1792 of 2020, Crl. M.A. No. 12554 of 2020
Decided On : 06-04-2021
Advocate Appeared:
For the Petitioner: Mr. Subhash Chawla.
For the Respondents: Mr. Amit Chadha, Ms. Samprikta Ghosal.
Point of Law: Criminal Law - Criminal Trial - Dishonoured of Cheque - Sought for quash of Proceedings - When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.
Headnote:
Companies Act, 1956 - Negotiable Instruments Act, 1881 - Sections 138/141/142 - Criminal Procedure Code, 1973 - Section 202, 252 and 482 - Dishonoured of cheque - Business of import and trading of ferrous, non-ferrous metals, precious metals and metal scrap - Alleged that accused-company through its Director, petitioner herein, had approached office of complainant on various occasions for supply of shredded steel scrap as per their business requirement and material was promptly supplied as per demand - It is alleged that against supply of steel scrap against invoice payment was to be made immediately after supply of material - Few payments against these invoices were received, as per accounts maintained by complainant-company, an amount was shown due towards accused-company - Whether averments in complaint are sufficient to proceed against petitioner as contemplated under Sections 138 and 141 of Act, 1881 and whether continuation of proceedings against petitioner, who claims to be neither signatory of cheque nor person in charge of accused-company, is proper.
Finding of the Court:
Possibility of an afterthought escape from liability cannot be ruled out - Moreover, extract of Form-14 ‘Leave with Wages Register’ does reflect petitioner’s name and also date of “entry into service” but details mentioned therein pertains to period January, 2019 till November, 2020 but no record qua years 2015 to 2018 i.e. the period of his employment, has been placed on record and this leaf does not even reflect by whom (designation of concerned employee of accused company) these entries have been recorded and in absence thereof, a logical conclusion cannot be arrived at by merely looking at this half informed document. However, several other documents including copies of Income Tax Returns for the year 2013-14, 2014-15, 2015-16 and 2016-17 and Annual Reports of Rathi Steel and Power Ltd. i.e. accused- company, have been placed on record to establish petitioner’s stand.
Result: Petition dismissed.
JUDGMENT :
SURESH KUMAR KAIT, J.
1. Worlds Window Impex (India) Pvt. Limited, incorporated under the provisions of Companies Act, 1956, preferred a complaint against Rathi Steel And Power Limited and its Directors Mr. Sumit Dass and Mr. Shyam S. Bageshara under Sections 138/141/142 of Negotiable Instruments Act, 1881. The complainant-company is engaged in the business of import and trading of ferrous, non-ferrous metals, precious metals and metal scrap whereas accused-company is a private limited registered company under the provisions of The Companies Act.
2. The complainant has alleged that the accused-company through its Director, petitioner herein, had approached the office of complainant on various occasions for supply of shredded steel scrap as per their business requirement and the material was promptly supplied as per demand. It is alleged that against supply of steel scrap against invoice bearing Nos. 2080000493 and 2080000494 for a sum of Rs. 1,14,62,732.27/- [as per agreed rate of Rs. 23131.80/MT dated 23.08.2013] payment was to be made immediately after supply of material. A few payments against these invoices were received, however, as per accounts maintained by the complainant-company, an amount of Rs. 80,00,000/- along with interest @ 24% was shown due towards accused-company as on 08.05.2017.
3. It is alleged that against discharge of afore-noted due payment, the accused-company had issued cheque bearing No. 000531 dated 27.12.2016 for Rs. 80,00,000/- drawn on Bank of Baroda, branch Gandhi Nagar, Ghaziabad while assuring the complainant- company that the same shall be honoured as and when presented in the bank. However, upon presentation of the cheque, the same was returned by the bank vide Memo dated 27.03.2017 with the remark “Account Blocked.” The complainant sent a legal Demand Notice dated 12.04.2017 to the accused company and it was served upon the accused-company and the petitioner on the same day.
4. On 06.05.2017 the complainant received a reply from the accused-company wherein it blatantly refused any liability towards complainant, whereas according to the complainant, the shredded steel scrap was supplied as per the business requirement of accused-company and the cheque in question was issued towards discharge of liability and accused tried to evade the legitimate payments of the complainant. According to the complainant, the cause of action had first arisen on the day of issuance of impugned cheque and further action arose when on presentation of cheque in bank, the same was dishonoured on 27.03.2017 and thereafter, when the accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice dated 12.04.2017. Hence, the complainant filed a complaint under Sections 138/141/142 of Negotiable Instruments Act, 1881 before the learned trial court for remedies as per law.
5. In the complaint so filed, the learned trial court, after going through the dates and events, evidence and documents on record as well as upon inquiry under Section 202 Cr.P.C. vide order dated 31.08.2017 held that prima facie offence under the Negotiable Instruments Act was made out against the accused and directed summoning of accused- company and its two Directors.
6. Against the aforesaid summoning order dated 31.08.2017, the Directors of the accused company filed application seeking discharge as well as dismissal of complaint before the trial court, which was dismissed vide order dated 21.12.2019 while observing that the pleas urged by them have to be seen during trial and also that once the plea of accused is recorded under Section 252 Cr.P.C. procedure contemplated under Chapter XX of the Code has to be followed and the only remedy available with the accused is under Section 482 Cr.P.C.
7. Aggrieved against the impugned summoning order dated 31.08.2017 and dismissal order dated 21.12.2019, petitioner, who is allegedly one of the Director of accused-company, is before this Court seeking quashing of these orders as w
