Delhi High Court
Arn Infrastructure India Ltd. vs State & Anr. on 23 December, 2014
Author: V.P.Vaish
Bench: V.P.Vaish
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd December, 2014
+ CRL.M.C. 1396/2013
ARN INFRASTRUCTURE INDIA LTD. ..... Petitioner
Through: Mr. Dhruv Gupta, Advocate.
versus
STATE & ANR. ..... Respondents
Through: Mr. Karan Singh, APP for the State.
CORAM:
HON'BLE MR. JUSTICE V.P.VAISH
VED PRAKASH VAISH, J. (ORAL)
1. By this petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as „Cr.P.C.‟), the petitioner assails order dated 30.01.2013 passed by learned Metropolitan Magistrate, Dwarka District Court, Delhi whereby the petitioner has been summoned for the offence under Section 138 of Negotiable Instruments Act, 1881 („NI Act‟, for short).
2. Shorn off unnecessary details, the facts of the case are that respondent No.2 herein filed a complaint under Section 138 of NI Act against the petitioner on the allegations, inter alia, that the complainant had booked unit/ shop of 410 sq. ft. in the project "Globus Residency" launched by the petitioner and paid a sum of Rs.3,20,000/- (Rupees Three lakhs twenty thousand) towards booking amount of the above said unit/shop in the month Crl. M.C. No.1396/2013 Page 1 of 6 of January 2010. However, the petitioner did not start the work on the said project despite persisting demand of the complainant and diverted the land of his project to some other project which was more profitable to him. When the complainant came to know about this diversion, she asked the accused to refund her money with penalty and interest. In discharge of liability, petitioner issued a cheque No.227558 dated 15.09.2012 drawn on Punjab National Bank, Karol Bagh, New Delhi for Rs.3,20,000/- (Rupees Three lakhs twenty thousand) for return of the booking amount. On presentation, the said cheque was dishonoured with the remarks „Insufficient Funds‟ vide return memo dated 17.09.2012. Despite service of statutory notice dated 14.11.2012 which was sent on 15.11.2012, the petitioner failed to make payment of amount of the said cheque.
3. Vide impugned order dated 30.01.2013 learned trial court summoned the petitioner for the offence under Section 138 of NI Act.
4. Feeling aggrieved by the said order the petitioner has filed the present petition.
5. Even though notice of the petition was issued to respondent No.2/ complainant, yet on 30.07.2013, no one appeared on behalf of respondent No.2 despite service. Consequently, a fresh notice was issued to respondent No.2 for 10.03.2014. However, nobody appeared on behalf of respondent No.2 despite service on 10.03.2014 and 20.05.2014. Thereafter, a fresh notice was issued to respondent No.2 on 20.05.2014 for 28.11.2014 and on 28.11.2014, Mr. Virender Chaudhary, Advocate appeared on behalf of respondent No.2/ complainant and sought an adjournment. Thereafter, no one appeared on behalf of respondent No.2 on subsequent dates of Crl. M.C. No.1396/2013 Page 2 of 6 03.12.2014, 16.12.2014 and today.
6. Learned counsel for the petitioner contends that the complaint does not disclose any cause of action. The petitioner received notice on 16.11.2012 which was sent by respondent No.2 on 15.11.2012. After receiving the said notice, on 30.11.2012, the petitioner deposited a sum of Rs.3,20,000/- (Rupees Three lakhs twenty thousand) in the account of respondent No.2 bearing account No.50068279050 at Allahabad Bank, Vikas Puri, New Delhi. Learned counsel for the petitioner has referred to letter dated 30.11.2012 (Annexure P-5) written by the petitioner to the Manager, Punjab National Bank, Karol Bagh, New Delhi and requested to transfer a sum of Rs.3,20,000/- (Rupees Three lakhs twenty thousand) through RTGS in the account of complainant, Shalu, bearing account No.50068279050 maintained at Allahabad Bank, Vikas Puri, New Delhi.
7. It is also submitted on behalf of learned counsel for the petitioner that the complainant concealed the fact that amount of the cheque had been paid within 15 days of receipt of notice and filed false affidavit by way of pre- summoning evidence.
8. I have carefully considered the submissions made by learned counsel for the petitioner and also perused the material on record.
9. Before adverting the facts of the case, it is necessary to reproduce Section 138 of Negotiable Instruments Act, 1881, which reads as under: -
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him within 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 Crl. M.C. No.1396/2013 Page 3 of 6 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 provision of this Act, be punished with imprisonment for a term which may be extended to two years, 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 in due 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, within thirty days of the receipt of information by him from the bank regarding the return of the cheque 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 purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
10. From the bare perusal of provision of Section 138 of NI Act, it is manifestly clear that the cause of action for filing the complaint arises if the drawer of the cheque fails to make payment of amount of the cheque within a period of 15 days of the receipt of notice of demand.
11. In the instant case, respondent No.2/ complainant has mentioned in Crl. M.C. No.1396/2013 Page 4 of 6 para 8 of the complaint that notice was sent on 15.11.2012 requiring the petitioner to make payment of cheque amount within 15 days from the receipt of notice. In para 9 of the complaint it is mentioned that notice was sent by speed post on 15.11.2012 and was delivered to the accused on 16.11.2012. The accused failed to make the payment of the amount of cheque. The copy of the letter dated 30.11.2012 (Annexure P-5 to the petition) goes to show that the petitioner gave letter to his bank namely Punjab National Bank, Karol Bagh, New Delhi and requested transfer of Rs.3,20,000/- (Rupees Three lakhs twenty thousand) through RTGS in the account of respondent No.2/ complainant bearing account No.50068279050 with Allahabad Bank, Vikas Puri, New Delhi. The certificate dated 16.05.2014 issued by Punjab National Bank, Karol Bagh, New Delhi also shows that RTGS UTR No.PUNBH12335098022 has been done on 30.11.2012 against Cheque No.FFT 221735 for Rs.3,20,000/- (Rupees Three lakhs twenty thousand) vide SD No.154696087 dated 30.11.2012 in account No.50068279050 in the name of Shalu (complainant) maintained at Allahabad Bank, Vikas Puri, New Delhi. The respondent No.2/ complainant has not chosen to rebut the same and no reply has been filed. Thus, the petitioner had paid the amount of the cheque in question i.e. Rs.3,20,000/- (Rupees Three lakhs twenty thousand) within the statutory period of 15 days from the receipt of notice.
12. As regards submission of learned counsel for the petitioner that the respondent No.2 had concealed the payment of Rs.3,20,000/- (Rupees Three lakhs twenty thousand) in her account on 30.11.2012, it may be mentioned that the petitioner is at liberty to initiate appropriate proceedings before the trial court in case the said proceedings are initiated, the trial court will Crl. M.C. No.1396/2013 Page 5 of 6 consider the same in accordance with law.
13. In view of the aforesaid discussion, the petition is allowed. Consequently, complaint case bearing CC No.2552/2013 titled as „Shalu vs. The Proprietor, ARN Infrastructures India Ltd.‟ for the offence under Section 138 of Negotiable Instruments Act, 1881 is quashed.
14. A copy of this order be sent to the trial court for information.
Crl. M.A. No.4375/2013The application is dismissed as infructuous.
(VED PRAKASH VAISH) JUDGE DECEMBER 23, 2014 hs Crl. M.C. No.1396/2013 Page 6 of 6