Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Del) 815

IN THE HIGH COURT OF DELHI AT NEW DELHI
CHANDRA DHARI SINGH, J.
H.S. OBEROI BUILDTECH PVT. LTD. – Petitioner
Versus
M/S MSN WOODTECH – Respondent
Crl. M.C. No. 5767 of 2023, Crl. M.A. No. 21698 of 2023
Decided On : 21-11-2024

Advocates:
Advocate Appeared:
For the Petitioner: Pawan Kumar Mittal
For the Respondents: Lal Singh Thakur, Sudhir Tewatia, Prashant Solanki, Muskan Gola, Ankush Saini

IMPORTANT POINT
The court upheld the summoning order under Section 138 of the NI Act, confirming that the complaint was filed within the limitation period and a prima facie case was established against the petitioners.

Headnote:
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Negotiable Instruments Act, 1881 - Sections 138 and 142 - Petitioners sought to quash the summoning order dated 28.10.2020 for dishonor of cheque - Court upheld the summoning order, noting that the complaint was filed within the limitation period and prima facie case was established against the petitioners. (Paras 1, 38)
(B) Limitation - The court clarified that the limitation period for filing a complaint under Section 138 is one month from the date of cause of action, and the learned Trial Court correctly calculated the limitation period, allowing for holidays. (Paras 18, 22)
(C) Condonation of Delay - The court emphasized that while the NI Act allows for condonation of delay under Section 142(b), the petitioners failed to demonstrate any valid reasons for the delay in filing the complaint. (Paras 26, 29)
Facts of the case:
The petitioners challenged the summoning order for a complaint under Section 138 of the NI Act, alleging that the complaint was filed after the limitation period and lacked sufficient grounds for liability.
Findings of Court:
The court found that the complaint was filed within the limitation period and that the learned Trial Court acted within its jurisdiction in issuing the summons.
Issues: The main issues were whether the complaint was filed within the limitation period and whether the petitioners could be held liable under Section 138 of the NI Act.
Ratio Decidendi: The court ruled that the complaint was timely filed, and the petitioners had not established grounds for quashing the complaint or the summoning order.
Result: Petition dismissed.

ORDER :

1. The instant petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter “BNSS”) [earlier Section 482 of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C.”)] has been filed on behalf of the petitioners seeking the following reliefs:

(b) Grant such other and further relief, as may be found just and proper under the circumstances of the case by this Hon’ble Court along with the costs to the petitioners.”

2. The respondent filed a complaint case bearing CC NO. 397/2020 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter “NI ACT”) thereby, alleging that the petitioners issued a cheque for a sum of Rs. 13,61,402/- in discharge of a legally enforceable liability. The cheque was presented for encashment but was dishonoured with the remarks “payment stopped by drawer.”

3. The learned Trial Court, vide order dated 28th October, 2020, passed the summoning order, whereby, the petitioners were summoned for the offence under section 138 of the NI Act.

4. Being aggrieved by the same, the petitioners have filed the instant petition seeking quashing of the impugned order dated 28th October, 2020 as well as quashing of the aforesaid complaint case filed by the respondent under the NI Act.

5. Learned counsel appearing on behalf of the petitioners submitted that the impugned order is bad in law and liable to be set aside as the same has been passed without taking into consideration the entire facts and circumstances.

6. It is submitted that the learned Trial Court has failed to take into account that the complaint has been filed after the expiry of the limitation period of one month as envisaged under Section 142 (1) of the NI Act.

7. It is submitted that the learned Trial Court took the cognizance of the case in a mechanical manner and without considering the fact that the complaint is barred by the limitation. It is further submitted that neither there was any application for condonation of delay explaining the reasons for delay, nor any such prayer was mad before the Court concerned.

8. It is submitted that the learned Trial Court has failed to appreciate that even if the allegations and assertions made by the respondent in the complaint case are taken as correct, then also no liability can be fastened on the petitioners for the reason that there is nothing on record in terms of Section 141 of the NI Act that can hold the petitioners liable under Section 138 of the NI Act.

9. It is submitted that the learned Trial Court has taken cognizance against “accused persons” and has not applied judicial mind to the situation at hand. Further, the mandate of law clearly states that at the stage of cognizance, a magistrate ought to apply its mind to the evidence before it and further should only proceed ahead after adjudicating the alleged role, if any, of the portrayed accused and if no role/involvement is found, the magistrate is duty bound to drop the process against the said accused.

10. It is submitted that there is no material on record to show that the petitioner no. 2 was the Chairman and Managing Director (hereinafter “CMD”) of the petitioner no. 1 company. It is further submitted that except a bald assertion that the petitioner no. 2 is the CMD, there is no averment or material to show that the petitioner no. 2 had any role in the alleged day to day affairs of the petitioner no. 1 company.

11. Therefore, in view of the foregoing submissions, it is prayed that the instant petition may be allowed and the reliefs be granted as prayed for.

12. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed being devoid of