Delhi High Court
Sunaina R. Mathani vs National Capital Territory Of Delhi And ... on 16 September, 2001
Equivalent citations: 95(2002)DLT362, 2002(61)DRJ439
Author: K.S. Gupta
Bench: K.S. Gupta
JUDGMENT K.S. Gupta, J.
1. In this petition filed under Section 482 Cr.P.C. the prayers made are as under:-
"a) call for the records of the case in Complaint Case No. 454 of 1998, pending before the court of Sh. V.K. Goel, Metropolitan Magistrate, patiala House Courts, New Delhi and after examining the same this Hon'ble court maybe pleased to quash the said proceedings;
b) quash the non-bailable warrants of arrest issued against the petitioner on 2.11.2000 and 25.1.2001 by the court of Shri V.K. Goel, Metropolitan Magistrate, Patiala House, New Delhi in Complaint case No. 454 of 1998.
c) pending the hearing and final disposal of the present petition, the further proceedings before the learned Trial court in Complaint Case No. 454 of 1998 be stayed;
d) pending the hearing and final disposal of the present petition, the execution of the non-bailable warrants of arrest issued against the petitioner in Complaint case No. 454 of 1998 be stayed;
e) pass ex parte ad-interim order/orders in terms of prayers (a) (b) (c) (d) above."
2. While issuing notice to respondents for 2nd August 2001 in Crl. M. 1634/2001 the execution of non-bailable warrants against the petitioner was stayed for four weeks to enable her to appear before the trial court and apply for bail by the order dated 23rd April 2001. Petitioner has since been admitted to regular bail by trial court. With the stay of execution of non-bailable warrants and petitioner having been admitted to bail, the prayers at (b) and (d) have been rendered infructuous.
3. In support of prayer at (a) above, the submission advanced by Sh. S.S. Gandhi for petitioner was two-fold-(i) notice of demand dated 17th February 1998 on behalf of respondent No. 2 company was issued much after the expiry of stipulated period of 15 days of the receipt of information by the company from bank regarding return of cheque in question as unpaid and (ii) petitioner had resigned as director of respondent No. 3/accused No. 1 company with effect from 1st April 1997. It was pointed out that on the post dated cheque in question the date written is 22nd December 1997. Attention was also drawn to the certified copy of Form No. 32 (at pages 19 & 200) issued by the Registrar of Companies, Maharashtra wherein the petitioner is shown to have resigned as director w.e.f. 1st April 1997.
4. Coming to first submission, copy of complaint filed under Sections 138 read with 141 and 142 of the Negotiable Instruments Act (for short the 'Act') and Sections 420 read with 120/34 IPC filed by respondent No. 2/complainant is at pages 21 to 31 on the file. It is alleged in this complaint that parties entered into a Hire purchase agreement dated 24th January 1995 and accused persons agreed to repayment structure as per the Schedule annexed thereto. Post-dated cheque No. 383210 for Rs. 3,32,500/- dated 22nd December 1997 drawn on Bank of India, Overseas branch, Mumbai was issued by accused company towards hire purchase Installments/delayed payment charges to the complainant. On presentation the cheque was returned unpaid vide memo dated 16th January 1998 containing the remarks 'refer to drawer'. Cheque together with memo was received by the complainant on 10th February 1998. Thereafter, complainant sent legal notice dated 17th February 1998 calling upon the accused persons to pay the amount of cheque together with further interest etc. Despite service of notice the accused failed to make payment of he demanded amount. To be noted that the notice dated 17th February 1998 was issued within 15 days of alleged receipt of intimation by the complainant form the bank regarding return of said cheque as unpaid on 10th February 1998. Thus, first, submission is repelled being without any merit.
5. Adverting to said second submission, in the decision in Anil Kumar Sawhney v. Gulshan Rai, it was held by the Apex court that a post-dated cheque becomes cheque under the Act on the date on the date which is written on it and six months period is to reckoned for the purpose of Section 138(a) of the Act from the date. Admittedly, 22nd December 1997 is the date written on aforesaid post-dated cheque issued on behalf of accused No. 1/respondent No. 3 infavor of complainant/respondent No. 2 company. Thus, short point which falls for consideration is whether the plea taken by petitioner that she cannot be held vicariously liable for the offence(s) complained of as she had ceased to be the director of accused No. 1 company w.e.f. 1st April 1997 supported by Form No. 32, can be gone into in these proceedings? In the decisions in Bharat Kumar Modi and Ors. v. Pennar Peterson Securities Ltd, 2000(2) All India Banking Law Judgments, 542 and Davinder Kaur and Anr. v. Small Scale Industries Development Bank of India and Anr. 1992(2) All India Banking Law Judgments, 97, identical point came to be considered by Andhra Pradesh High Court and it was was held that plea to the said effect can be looked into by the trial court and no investigation is supposed to be done by the High Court in proceedings under Section 482 Cr. P.C. I am in agreement with the ratio in both these decisions. It may only be noticed that in Para No. 3 of the complaint it is pleaded that accused No. 3-petitioner Along with accused No. 2 and 4 was in charge of and responsible for running of the affairs of accused No. 1 company. Petitioner, thus, cannot seek quashment of complaint on said plea of having resigned from accused No. 1 company w.e.f. 1st April 1997 and the petition deserves to be dismissed.
6. Consequently, the petition is dismissed.