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2009 DIGILAW 455 (DEL)

BOSS GEARS LTD. v. MOHTA BRIGHT STEELS P. LTD.

2009-04-20

MOOL CHAND GARG

body2009
MOOL CHAND GARG, J. 1. In all the above matter, the petitioners are aggrieved from the order passed by the Metropolitan Magistrate, whereby he summoned them to face trial under Section 138 of N.I. Act on the basis of a complaint lodged by respondent No.1 on account of dishonour of the cheques admittedly issued by the petitioner to the complainant and which was admittedly dishonoured on presentation. The only dispute which has been raised by the complainant while filing the complaint in all these cases is that the re-payment of the amount of dishonoured cheque was not done by the petitioner within the time prescribed in accordance with law. 2. However, it is a matter of record that on receipt of notices about the dishonour of the cheques the petitioners paid the amount of cheques by means of a consolidated demand draft of Rs.2,82,462.36 which took care of the amount of each of the cheques which is the subject matter of different complaints filed by the complainant as detailed below: Serial No. C.C. No. Cheque No. Date Amount 1. 680/01 168962 21.10.2000 Rs.68,460/- 2. 681/01 169505 25.10.2000 Rs.30,000/- 3. 682/01 169552 15.11.2000 Rs.63,211.36/- 4. 683/01 169678 30.12.2000 Rs.24,633/- 5. 684/01 169679 6.1.2001 Rs.40,000/- 6. 685/01 169680 13.1.2001 Rs.56,158/- 3. However, the complainant for the reasons best known to them returned the demand drafts on 28.04.2001 and, thereafter the cash order was again sent on 09.05.2001 which was encashed. 4. It is, thus, submitted by the petitioners that there was no occasion for filing of the complaint under Section 138 of the N.I. Act in these six cases and the filing of the complaint is thereof a mala-fide attempt on the part of the complainant to harass the petitioner probably with a view to seek some more money qua the dishonoured cheques which cannot be permitted in accordance with the scheme of the Negotiable Instruments Act. 5. To appreciate the correct facts of this case it would be appropriate to take note of the sequence of the events. i. Respondent No.1 (M/s Mohta Bright Steels Pvt.Ltd.) presented all 6 cheques mentioned in para (2) for encashment on 3.4.2001 with its banker State Bank of Bikaner and Jaipur, Vasant Kunj “New Delhi” iii. The cheques were returned with remarks “funds insufficient” with the returning memo dated 4.4.2001 .iv. Respondent no.1 served the legal notice dated 14.4.2001 dispatched on 16.4.2001 to the petitioners. The cheques were returned with remarks “funds insufficient” with the returning memo dated 4.4.2001 .iv. Respondent no.1 served the legal notice dated 14.4.2001 dispatched on 16.4.2001 to the petitioners. .v. Petitioners on receiving the notice dated 14.4.2001 sent the reply on 28.4.2001 along with consolidated draft/cash order amounting to Rs. 2,82,462.36 dated 28.4.2001 against all the six cheques which was returned on 4.4.2001 vi. Petitioners sent reply of the legal notice along with cash order by their counsel Shri Narinder Kr. Jain on 28.4.2001 vide speed post no. SP.143&144 dt. 28.4.2001 to respondent no.1 and their counsel. vii. Respondent no. 1 did not accept the speed post letter in which the cash order was sent and the same was returned to counsel for the petitioners. Counsel for the petitioner again sent the same to the counsel for the respondent on 9.5.2001 vide speed post receipt no. 41 dt. 9.5.2001 along with cash order, and covering letter dt. 9.5.2001 viii. Respondent no.1 encashed the cash order dated 28.4.2001 on 15.5.2001 in their A/c No. CC/6100 to Corporation Bank NIT Faridabad and the petitoner’s bank confirmed the withdrawal of payment by the respondent. This is also the position in all other cases. 6. Therefore, keeping in view the sequence of events, it is not a case that the petitioners were avoiding payments. The petitioners after receiving the legal notice dated 14.4.2001 replied to the same along with the consolidated draft/cash order on 28.4.2001 i.e. within 15 days of the receipt of notice by the respondents. This clearly shows that petitioners discharged their liability well within time. 7. In view of the aforesaid, it is clear that payment of those cheques was not paid individually but was paid by way of consolidated bank draft by the petitioner to the complainant/ respondent within the period specified and as such the liability was no more there which would have entitled the petitioner to prosecute them under Section 138 of the N.I. Act, which Section reads as under:-138. Dishonour of cheque for insufficiency, etc., of funds in the accounts:-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for 2["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- .(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. .(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and .(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability]. 8. In view of the aforesaid once a notice has been received about the dishonour of the cheque the drawer of the cheque is required to pay/ deposit the amount of the dishonoured cheque within 15 days of the receipt of the notice which has been done by the petitioner and, thus, no cause of action was there for the complainant to have filed the complaint under Section 138 of the N.I. Act. 9. 9. It may be observed here that the respondents have not disputed that the demand draft was sent earlier and it has been sent again and that it has been encashed. 10. In these circumstances, I am satisfied that permitting the respondents to continue with the proceedings under Section 138 of the N.I. Act in these cases would be miscarriage of justice and it would, therefore, be in the interest of justice to quash the complaints filed by the respondents by exercising powers vested with this Court under Section 482 Cr.P.C. 11. Accordingly petitions are allowed. The complaint filed by the respondents in all the 6 cases are quashed. The bail bond of the petitioner will stand discharged. Copy of the order be sent to the learned Trial Court for information along with the TCR if any.