Delhi District Court
Sh. Kuldeep Singh vs Sh. Harendra Singh on 17 August, 2015
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION
JUDGE4 (SHAHDARA), KARKARDOOMA COURTS , DELHI
Cr. Revision No. : 10/14
UID NO . 02402R0335302013
C.C No. 360/2013
U/s 138 N.I Act.
In the matter of :
Sh. Kuldeep Singh
Sole Proprietor of M/s Nandi Gas Distributor
S/o Shri Pritam Singh
Office at : 4/109, Shastri Gali,
60 Foota Road, Vishwas Nagar,
Delhi32. ..... Revisionist
versus
Sh. Harendra Singh
S/o Shri Sumer Singh
R/o C7/93, Yamuna Vihar,
Delhi. ..... Respondent
Final arguments heard : 08.07.2015
Date of order : 17.08.2015
Decision : Disposed of.
J U D G M E N T
1. The present revision petition has been filed against the order Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 1/14 dated 17.07.2013 passed by Sh. Sanjay Bansal, Ld. CMM, Shahdara, KKD, Delhi, in the complaint case bearing CC No. 360/13, titled as Harendra Singh vs Kuldeep Singh. Vide aforesaid order Ld.CMM. has summoned the petitioner for the offence u/s 138 of Negotiable Instruments Act (hereinafter referred as N.I Act in short).
2. The brief facts which are necessary for the adjudication of the present revision petition as stated in the complaint are that the respondent (hereinafter to be referred as complainant) filed a criminal complaint against the petitioner (hereinafter to be referred as accused) u/s 138 N.I Act on the ground that on the request of Mr. Arjun Singh, he had given a friendly loan of Rs. 10,00,000/ to the accused and to discharge his liability, the accused issued three cheques which got dishonoured as the payment was stopped by the accused. Thereafter, complainant issued a legal notice to the accused on 23.05.2013 but accused failed to pay the amount of dishonoured cheque. Thus, complainant filed the aforesaid criminal complaint against the accused on 08.07.2013. Vide order dated 17.07.2013, learned trial court summoned the accused for commission of offence u/s 138 of N.I Act.
3. Now the petitioner/accused has filed the present the present Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 2/14 petition assailing the summoning order passed by Ld. trial court mainly on the following grounds:
a) that the cheques in question are issued by the firm Nandi Gas Distributors which is a legal entity, thus, Nandi Gas Distributor is necessary party and, thus, the complaint is not maintainable without impleading the same.
b) that as per complaint the loan of Rs. 10,000,00/ (Ten lacs only) was given by the complainant on the request of Mr. Arjun Singh, thus Mr. Arjun Singh was a necessary party.
c) that the complaint is barred by time as the returning memo (dated 30.03.2013) of cheque no. 071205 shows that the cheque was returned on 30.03.2013, however, legal notice was issued on 23.05.2013 i.e. beyond the period of limitation.
d) that to invoke the provisions of 138 N.I Act the dishonor cheque should have been drawn by the person from the a/c maintained by him.
e) that learned trial court has failed to consider that the complainant filed a false complaint and petitioner has Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 3/14 clarified these facts in his reply to the legal notice EX CW 1/1.
f) that petitioner already placed on record the necessary documents which establish that a false complaint has been filed, thus, learned CMM ought to have stopped the proceedings of the complaint case u/s 258 Cr.P.C.
g) that learned trial court has not mentioned the grounds for summoning the petitioner in his order dated 17.07.13.
h) that the legal notice was issued on 23.05.2013 and the complaint was filed on 08.07.2013 i.e. after 45 days of issuance of notice, thus, there is one day delay in filing the complaint and therefore the same is barred by the limitation.
i) that ld. trial court has failed to consider the material placed on record that the returning memo in regards to cheque no. 071208 & 071209, dated 05.05.13 & 08.05.13, both drawn on UCO Bank Shahdara, Delhi., have not been placed on record which is mandatory requirement of section 138 N.I. Act.
Cr. No. 10/14
Kuldeep Singh v. Harendra Singh 4/14
4. I have heard Ld. counsel for the petitioner, Ld. Addl. P.P for the state and gone through the trial court record of the case. None appeared on behalf of the respondent despite service of the notice of the present petition.
5. The petitioner has raised number of grounds in the present petition and therefore, it is deemed appropriate to deal with them one by one. The first ground raised by the petitioner is that the cheques in question have been drawn from the bank a/c of proprietorship i.e M/S Nandi Gas Distributors, therefore, alongwith the petitioner the proprietorship was also a necessary party to the complaint. It is well settled law that the proprietorship concern is not a legal entity and all the legal proceedings either instituted by the proprietor or against the proprietor are to be instituted in the name of the proprietor only and proprietorship concern is not a necessary party. In this regard, this court is supported by the case law reported as 2000 (1) Civil Court cases titled as N. Vaidyanathan Deepika Milk Marketing v. M/s Dodiya Dairy Ltd.
6. Petitioner has further contended that as per complainant, the loan was given on the pursuation of Mr. Arjun Singh and Mr. Arjun Singh had assured the complainant for encashment of cheque in Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 5/14 question, thus, Mr. Arjun Singh was a necessary party to the complaint. This court does not find substance in this ground as it is clear that Mr. Arjun Singh is neither stands in the capacity of the complainant nor accused and at best he could be treated as a witness and can be examined as a witness.
7. It is further contended that as per return memo, the cheque No. 071205 was returned as dishonoured on 30.03.2013, however, legal notice was sent on 23.05.2013, thus, it is stated that complaint was barred by time and liable to be dismissed. It is clear from the perusal of the complaint that the complaint has been filed in regard to three following cheques:
8. It is clear from the record that the first cheque was dishonoured on 30.03.2013 and it is clear that second and third cheques were allegedly issued on 05.05.2013 and 08.05.2013 respectively. It is clear from their return memos that these cheques were dishonoured on account of stop payment, however, the return memos do not bear the date of return of the cheque, thus, by latest these cheques would have got dishonoured on 05.05.2013 or after 05.05.2013. As per section 138(b) a legal notice is to be issued within thirty days from the date of information of the dishonour of the cheque. It is clear from the record that the legal Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 6/14 notice EX CW 1/G was issued on 23.05.2013 which is well within the period of limitation. It is also clear from the record that a single notice was issued for all three cheques , the first one which was dishonoured on 30.03.2013 and the other two which would have got dishonoured on 05.05.2013/08.05.2013 or thereafter, thus, it is clear that the legal notice in respect to the cheque no. 071205 was sent much after the expiry of the period of limitation of thirty days. Thus, Ld.trial court erred in taking cognizance in respect to all three cheques instead of only taking cognizance in regard to the rest of the two cheques. It is well settled law that every dishonoured cheque gives rise to a separate cause of action and amounts to a separate individual offence and it is also well settled law that one single complaint u/s 138 can be filed for the dishonour of four cheques. As per section 219 Cr.P.C accused can be charged together for three offences of the similar kind committed by him within the span of twelve months. As per section 220 Cr.P.C, all the offences can be tried together, if these offences form part of same transaction. Thus, complainant is entitled to file complaint in regard to the three offences, however, court would decline to take cognizance of any of these three offences which is barred by limitation. There is no Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 7/14 legal bar regarding sending a single notice in respect to the cheque for which limitation as contemplated u/s 138 (b) of N.I Act, has already expired alongwith the other chques which are within limitation. Thus, even if a single notice has been sent, the legal notice can not be termed as legally defective. It is clear from the record that as far as the other two cheques are concerned ( Nos. 071208 & 071209), the legal notice was sent within the period of limitation and the complaint was also filed within the period of limitation. The legal notice for the first cheque was barred by limitation, thus, under these circumstances, the Ld. trial court ought not to have taken cognizance in respect to the first cheque and should have only taken cognizance qua the rest of the two cheques for which legal notice was sent within limitation. Thus, It is held that the complaint of respondent can only continue in respect to the cheque nos 071208 & 071209
9. It is also contended that Ld. trial court did not consider the documents filed by the petitioner. This plea has been taken for the sake of plea and it is clear from the trial court record that no documents were filed by the petitioner.
10. The petitioner has cited the case law Agrotech. Ltd v. Water Ways Ltd. and contended that to attract the provisions of section Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 8/14 138 N.I Act, the cheque ought to have been drawn by a person from the a/c maintained by him. It is observed with utmost humility that in the present case, the cheques have been drawn by the proprietor and proprietor is the sole authority. Thus, it is held that the in the present case complaint has been filed against the person (petitioner) who has drawn the cheque.
11. It is also contended that the complaint has been filed without clarifying the fact raised by the petitioner in reply to the legal notice, and complainant should have filed the complaint, after clearing the position stated in the reply. In this regard Ld. counsel for the petitoiner has cited case law report as V (2010) SLT 533. It is submitted with utmost humility that the facts of the judgment are altogether different from the present case and therefore not applicable to the present case. In the present case, it has already been observed that the cheques in question were drawn and issued by the petitioner but as per petitioner the cheques were allegedly not issued to the respondent. As per petitioner, the cheques were obtained by Mr. Arjun Singh on the pretext of getting him a loan of Rs. 40,00,000/ which loan was sanctioned and he was only given cheque of Rs. 6,00,000/. Thus, it is clear that it is the defence of the petitioner which he has raised through Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 9/14 his reply and in view of the judgment of Hon'ble Supreme Court in the case of reported as 2010 (11) SCC 441 titled as Rangappa v. Mohan, initially a presumption of section 139 of N.I Act is to be drawn in the favour of the complainant that the cheque was issued against legally enforceable debt and onus is on the accused /drawer to rebut this presumption by leading his defence evidence. Thus, it is held that complaint is maintainable and can not be dismissed merely on the basis of the defence raised in reply to the legal notice.
12.It is further contended that after considering the document of the petitioner Ld. trial court ought to have stopped the proceedings u/s 258 Cr.P.C. This court again does not find substance in this ground as firstly the petitioner has not filed any document on record and secondly provisions of section 258 Cr.P.C are not applicable to the complaint cases.
13.It is further contended that the summoning order passed by ld.
trial court on 17.07.2013 does not disclose the basis of summoning. There is no substance in this ground as it is clear that prima facie an offence u/s 138 of NI Act has been committed by the petitioner in respect to the cheque nos 071208 & 071209.
14.It is further contended that the complaint is to be filed within forty Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 10/14 five days from the date of cause of action and in this case the legal notice was issued on 23.05.2013 and the complaint was filed on 08.07.2013, thus, the same was barred by limitation. It is clear from the aforesaid discussions that in respect to cheque nos. 071208 & 071209, the legal notice dated 23.05.2013 was sent well within limitation as the cause of action would arise fifteen days after the service of the legal notice. In this case the legal notice was sent on 23.05.2013 and normally it takes minimun three days to one week's time to serve the notice. Thus, even if it is assumed that legal notice was served within three days of dispatch i.e. on 26.05.2013, thus, the cause of action would arise after expiry of fifteen days from 26.05.2013 i.e. 10.06.2013. In view of the provisions of section 142 (b) of NI Act, complaint is to be filed within one month of the accrual of the cause of action, thus, in the present case the complaint could have been filed by 09.07.2013 and since the present complaint has been filed on 08.07.2013, hence, it is held that the same is within the period of limitation.
15.It is further contended that summoning order is liable to be set aside as return memos in respect to the cheque numbers 071208 & 071209 have not been filed. There is no merit in the plea as Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 11/14 complainant has filed the return memo alongwith these cheques and the same are EX CW 1/D and EX CW 1/F. It is further contended that the respondent has obtained the impugned order while concealing the fact that the petitioner has already filed a civil suit and a complaint u/s 156 Cr.P.C in regard to the same cheques. Filing of the said cases is no bar for filing of the complaint case by the respondent if he had a valid cause of action. It is already observed that prima facie complainant has a valid cause of action in respect to cheque nos 071208 & 071209.
16.Before parting with this order it is deemed necessary to deal with the argument of ld. counsel for the petitioner which he has raised in regard to the maintainability of the complaint as there was a delay in sending the legal notice. Ld. counsel submitted that it is mandatory that the legal demand notice is to be served within thirty days of the information of the dishonour of the cheque and in the present case one of the cheques was dishonoured on 30.03.2013 and legal notice was sent on 23.05.2013 which is beyond the thirty days period and delay in sending the legal notice can not be condoned. He submitted that the delay in sending the legal notice can not be condoned and in such cases the complaint is liable to be dismissed. In support of his aforesaid Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 12/14 contention Ld. counsel for the petitioner has also cited case laws also. The facts of the case law cited by ld. counsel are different from the peculiar facts of the present case as in those cases legal notice was sent only in respect to one single cheque and in the instant cheque a single notice has been sent in regard to the dishonour of three cheques. The legal notice in the present case is time barred only in respect to the cheque no. 071205 and in regard to the other cheques the legal notice has been sent well within limitation. Thus, the legal notice can not be said to be time barred in respect to these cheques and therefore, complaint is maintainable in respect to the rest of the two cheques qua which legal notice was sent within limitation.
17. It is most respectfully observed that the case laws cited on behalf of the petitioner are not applicable to the peculiar facts of the present case and since petitioner has established a prima facie case, the petitioner can only prove his defence at the relevant stage.
18.Keeping in view of the aforesaid circumstances, the order summoning of accused passed by ld. trial court is upheld. The cognizance taken by ld. trial court in regard to the cheque nos. 071208 & 071209 is held to be within limitation and cognizance Cr. No. 10/14 Kuldeep Singh v. Harendra Singh 13/14 taken by the Ld. trial court regarding cheque no. 071205 is held to be time barred. Thus, trial court is directed to proceed with the complaint in accordance of law only in respect to these two cheques.
19.TCR be sent alongwith copy of this order. File be consigned to record room.
(Announced in the open (Ajay Gupta)
Court on 17.08.2015) Addl. Sessions Judge04
(Shahdara),KKDCourts,Delhi
.
Cr. No. 10/14
Kuldeep Singh v. Harendra Singh 14/14
Cr. No. 10/14
Kuldeep Singh v. Harendra Singh 15/14