Delhi District Court
Sh.Ranjit Singh Purwaha vs (1) M/S Harsha Associates Pvt.Ltd on 13 February, 2015
1
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL
SESSIONS JUDGE-05 (CENTRAL), TIS HAZARI COURTS
DELHI
CR Nos. 37/14
Unique ID No.0240IR0061952014
Sh.Ranjit Singh Purwaha,
S/o Sh. Harjinder Singh Purwaha,
R/o 228, Wheat Lands,
Heston Middx TW 5 OSQ,
England UK.
......... Revisionist
Versus
(1) M/s Harsha Associates Pvt.Ltd.
(2) Sh. Sumit Kathuria,
Director, M/s Harsha Associates Pvt. Ltd.
(3) Sh. Harish Kathuria,
Director, M/s Harsha Associates Pvt. Ltd
(4) Sh. Ravi Kathuria
Director, M/s Harsha Associates Pvt. Ltd
All at 117, Hargobind Enclave, Delhi -110092
........ Respondents
Date of institution - :04.02.2014
Date of conclusion of arguments/
reservation of Judgment :06.02.2015
Date of pronouncement of judgment :13.02.2015
Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 1 of 11
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Criminal Revision Nos.19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15
Sh.Ranjit Singh Purwaha,
S/o Sh. Harjinder Singh Purwaha,
R/o 228, Wheat Lands,
Heston Middx TW 5 OSQ,
England UK.
......... Revisionist
Versus
(1) M/s Harsha Associates Pvt.Ltd.
(2) Sh. Sumit Kathuria,
Director, M/s Harsha Associates Pvt. Ltd.
(3) Sh. Harish Kathuria,
Director, M/s Harsha Associates Pvt. Ltd
(4) Sh. Ravi Kathuria
Director, M/s Harsha Associates Pvt. Ltd
All R/o 117, Hargobind Enclave, Delhi -110092
........ Respondents
Date of institution - :02.02.2015
Date of conclusion of arguments/
reservation of Judgment :06.02.2015
Date of pronouncement of judgment :13.02.2015
ORDER
1. Present revision petitions have been preferred by the revisionist against the impugned common order dated 30.11.2013 passed by the learned MM in complaint cases bearing Nos.7012/13, 7138/13, 7221/13, 7312/13, 7604/13, 8203/13, 8204/13 and 8205/13 titled as Ranjit Singh Purwaha Vs M/s Harsha Associates Pvt Limited filed under Section 138 of Negotiable Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 2 of 11 3 Instruments Act whereby the proceedings have been dropped against the respondents.
2. Brief facts necessary for the disposal of the present revision petitions as alleged in the corresponding complaints are that an FIR bearing No. 121/2010, PS EOW, u/ss 420/406/408/120B IPC was filed against respondent nos.3 and 4. During the pendency of the bail applications of respondent Nos.3 and 4 in the said FIR, respondent no.1 through respondent no.2 entered into a written compromise dated 25/11/2011 with the complainant/revisionist and his associates(Ashok Kumar Verma, Sant Gyaneshwar Kwatra, Sushma Kwatra and Vikas Kwatra). Vide the said compromise, the respondent no.1 through respondent no.2 agreed to pay a sum of Rs.7.35 crores to the complainant and his associates. Other terms and conditions were also settled in the said compromise. As per one of the conditions, the respondent no.1 through respondent no. 2 issued several post dated cheques of Rs.10,50,000/- (Rs ten lacs and fifty thousand) each in favour of the revisionist/complainant/Ranjit Singh Purwaha etc. in order to discharge the existing liability of the respondents. As some of the post dated cheques in question issued by respondent no.2 got dishonoured on presentation, Sh.Ranjit Singh Purwaha/revisionist filed complaints u/s 138 of The Negotiable Instruments Act before the learned MM, the details of which are given in the following table:-
Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 3 of 11 4 Cheque No. CC No. Dated 783 1094 (8203 new no) 15.8.12 782 1095 (8204) 15.7.12 784 7012 15.9.12 787 7221/13 15.12.12 786 7138/12 15.11.12 785 1202/12 (8205) 15.10.12 788 7312/13 15.01.13 789 7604/13 15.02.13
3. It was alleged therein that even after the respondents/accused persons were contacted and legal demand notice was served regarding the dishonour of the cheques in question, neither any reply was sent nor the cheque amount was paid.
4. Pursuant to the filing of the complaints, the respondents were summoned.
However, at the time of framing notice u/s 251 Cr.P.C, the learned MM vide impugned common order dated 30.11.2013 dropped the proceedings against the respondents. It is this impugned common order which has been challenged before this court by way of the present revision petitions.
5. Arguments were heard at length and even efforts were made to settle the matter between the parties amicably but to no avail.
6. I have heard Sh. Pawanjit S.Bindra, learned counsel for the revisionist/complainant and Mr.Neeraj Grover, learned counsel for the respondents at length and have perused the trial court record and the judgments filed in support of the contentions of both the parties with utmost care.
7. The impugned common order dated 30.11.2013 has been challenged on various grounds by the learned counsel for the revisionist/complainant.
Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 4 of 11 5
8. It was firstly urged by the learned counsel for the revisionist that in view of the Judgments of the Hon'ble Supreme Court titled as Adalat Prasad Vs Roop Lal Jindal and Others and Subramanium Sethu Raman Vs State of Maharashtra, the learned MM had neither any power to review or recall the summoning order nor had the power to drop the proceedings against the accused or discharge the accused at the stage of framing notice u/s 251 Cr.P.C.
9. Per contra, it was urged by the learned counsel for the respondents that in view of the Supreme Court Judgment titled as Bhushan Kumar and Another Vs State of (NCT of Delhi) and Another reported as AIR 2012 SC 1747, and other judgments (Urshilla Kerkar Vs Make My Trip India Private Limited, Harish Rikhari Vs Fuji Film India Private Limited, Rainee Singh Vs State and Another, Aman Kumar Harjai Vs State) rendered by the Hon'ble High Court of Delhi, the learned MM has rightly used his powers and held that no prima facie case was made out against the accused and did not frame any notice u/s 251 Cr.P.C thereby dropping the proceedings against the accused.
10. The Hon'ble Supreme Court in the Judgment of Bhushan Kumar and Another (supra) had held that ;
"It is inherent in Section 251 of the Code that when an accused appears before the Trial Court pursuant to summons issued u/s 204 of the Court in a summons trial case, it is the bounden duty of the trial court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code".
Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 5 of 11 6
11. There is no denying that the trial court is not expected to function like a Post Office and to mechanically frame notice but is bound by law to apply its mind to find out whether prima facie case is made out against the accused or not. Hence, I have no doubt that the learned MM had the power to decide if prima facie case was made out at the the stage of framing of notice and frame the notice or discharge the accused accordingly.
12. The second argument which was raised by learned counsel for the complainant/revisionist was that, it was incorrectly held by the learned MM that there was no legally enforceable debt. Rather, the entire dispute between the parties arose due to the huge amount which was outstanding in favour of the revisionist and his associates, consequent upon which the Compromise Agreement dated 25.11.2011 was arrived at and as stipulated in the agreement, various post dated cheques were issued by respondent no.2 in favour of the revisionist/complainant. Hence, the basic ingredient for a complaint u/s 138 of The Negotiable Instruments Act i.e "legally enforceable debt" was very much present in the complaints.
13. In answer to the said argument, it was contended by Sh. Neeraj Grover, learned counsel for the respondents that the complaints filed u/s138 Negotiable Instruments Act by the revisionist did not satisfy the most essential requisite of the provision of Section 138 of Negotiable Instruments Act i.e "existence of legally enforceable debt". The complaints filed by the complainant failed to disclose as to how the post dated cheques issued on the basis of the Compromise Agreement dated 25.11.2011 were issued in discharge of any legally enforceable debt or liability. It was also urged that as the revisionist/complainant failed to perform his obligations as per the compromise dated 25.11.2011, the compromise did not fructify and hence, became null and void. In support of his said contention, the learned counsel for the respondents relied upon cases titled as Lalit Kumar Sharma Vs Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 6 of 11 7 State of UP and Another, reported as 2008 (7) SCALE 561, Harish Kapoor Vs Akanksha Gupa decided on 04.12.2008 in Crl. M.C 3869/2007 Thakur Arora Vs State of (NCT of Delhi) and Another decided on 19.02.2009 in Criminal Revision Petition No.103/2008 .
14. In Harish Kapoor Vs. Akansha Gupta, the parties had arrived at an amicable settlement during a matrimonial dispute as per which the petitioner Harish Kapoor had handed over some cheques which had got dishonoured. It was held that since a post dated cheque was issued which was to be encashed at the time of the quashing of the FIR and that too, upon a settlement arrived at between the father in law and daughter in law, it can not be said that this cheque was issued towards payment of debt which could be legally enforced by the respondents against the petitioner.
15. In Lalit Kumar Sharma (supra), relied upon by the learned counsel for the respondents, during the pendency of the complaint u/S 138 Negotiable Instruments Act, the parties had arrived at a settlement and another cheque in terms of compromise was issued in favour of the complainant. This subsequent cheque was however, dishonoured resulting in filing of the second complaint. The second complaint which was filed on the basis of cheuque given in compromise and in lieu of the dishonoured cheques of the first complaint was held by the Hon'ble Supreme Court to be not maintainable by observing;
"Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability . As the compromise did not fructify, the same can not be said to have been issued towards payment of debt".
It was also observed therein ;
"Thus, the second cheque was issued by Manish Arora for Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 7 of 11 8 the purpose of arriving at a settlement. The said cheque was not issued in discharge of the debt or liability of the company of which, the appellant were said to be the Directors. There was only one transaction between Sh.Ashish Narula, Sh. Manish Arora, Directors of the company and the complainant. They have already been punished. Thus, the question of entertaining the said complaint did not arise. It was, in our opinion, wholly misconceived. The appeal, therefore, in our opinion must be allowed. "
16. The ratio of the judgment of the Supreme Court in Lalit Kumar Sharma was also discussed and interpreted in Thakur Arora Vs State (NCT of Delhi) and Another in para 14 of the judgment as follows:
"The Supreme Court categorically held that in the above circumstances a separate complaint could not be maintained since the cheque issued in terms of the compromise was not towards any liability for which the earlier complaint had been filed and further when the accused there had been convicted and sentenced".
17. In the case of Thakur Arora, initial complaint u/s 138 Negotiable Instruments Acts was filed in relation to the dishonour of the cheque due to "funds insufficient" drawn by the respondent no. 2 in favour of the appellant as part payment of loan borrowed by him. Lateron, the parties arrived at a settlement vide a MOU and in pursuant to the MOU, post dated cheques were given to the appellant which were also dishonoured. It was in these circumstances that it was held that ;
The complainant can not be without a remedy and as stipulated in the MOU, if the cheques issued pursuant to the MOU were dishonoured, the MOU would come to an end and original complaint would revive.
18. In all the three judgments discussed above, it was observed that to institute a complaint u/s 138 of the Negotiable Instruments Act, the dishonoured cheques have to be issued in discharge of a legally enforceable debt and Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 8 of 11 9 the cheques issued in terms of a compromise did not create a new liability.
19. Despite combing the entire complaint (s) no facts were found from which it can be inferred that the cheques in question were issued in discharge of a legally enforceable debt. The complaint (s) is completely silent qua this most essential ingredient. The para 3 of the complaint (s) only mentions "that the accused no. 2 issued several cheques in the name of the complainant and his associates in order to discharge the existing liability of the accused persons.", but what was the "existing liability" was not spelt out in the complaint (s). Since, the most essential prerequisite, "existence of a legally enforceable debt" for filing any complaint (s) u/s 138 of the Negotiable Instruments Act has not been satisfied, I am of the opinion that the complaint
(s) lacks necessary ingredients and the complaint (s) can not be sustained.
20. It was also contended that since the compromise agreement dated 25.11.2011 was annexed with the complaint (s), the same is a part and parcel of the complaint (s) and has to be read with the complaint (s). The agreement clearly discloses that the cheques in question were issued in discharge of a legally enforceable debt.
21. Assuming for the sake of arguments, that the compromise PX dated 25.11.2011 as mentioned in para 3 of the complaint (s) is to be read along with the complaint (s), the same discloses that the compromise dated 25.11.2011 was arrived at between respondent no.1 through respondent no.2 and complainant and his associates. Respondent nos.3 and 4 were never the party to the compromise dated 25.11.2011. The cheques in question were issued pursuant to the said compromise by respondent no.2 who was one of the Directors of the respondent no. 1. Admittedly, at the time of execution of compromise dated 25.11.2011, the respondent nos. 3 and 4 who were also the Directors of respondent no. 1 company were in JC in FIR bearing No.121/2010, PS EOW u/s 420/406/408/120B IPC and thus can not Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 9 of 11 10 be deemed to be incharge of and responsible to the company for the conduct of its business at the relevant time. In the event of the cheques having been issued by respondent no.2, the question as to how respondent nos.3 and 4 were arrayed as accused nos.3 and 4 in the complaint (s) hence remains unanswered. The revision (s) for this reason as well deserves to be dismissed.
22. Most significantly, the compromise dated 25.11.2011 was arrived at during the pendency of the bail applications of respondent nos.3 and 4 in FIR No. 121/2010, PS EOW and not during any complaint (s) u/s 138 of the Negotiable Instruments Act or any civil suit for recovery of the alleged amount of Rs.3,26,82,931/-. It is not the case of the complainant that any recovery suit has been filed to recover Rs.3,26,82,931/- or that it was filed and withdrawn consequent upon the compromise agreement dated 25.11.2011. Any cheque given during the said compromise can not therefore be held to have been given in discharge of any legally enforceable debt especially when from the very face of the compromise agreement it appears that it was executed much after expiry of three years from the date of the collaboration agreement which is very vaguely mentioned as having been executed in 2008 without mentioning the date and month of its execution. However, from the perusal of the record, I find that the collaboration agreement was executed in August 2008 and therefore, as already mentioned above, the previous liability if any arising from the collaboration agreement was time barred when the compromise dated 25.11.2011 was arrived at.
23. In view of the aforesaid discussion, I do not find any infirmity or illegality in the impugned common order dated 30.11.2013.
24. Before parting with the order, I may observe that the revisionist in his revision petition (s) has substantially improvised upon the facts mentioned in Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 10 of 11 11 the complaint (s) filed u/s 138 of the Negotiable Instruments Act so as to misguide the Court which is highly improper. Precious time of the court has been wasted in lengthy arguments addressed by the revisionist despite the fact that the complaint(s) did not disclose any legally enforceable debt and was devoid of any merit. The revisions are therefore, dismissed with the cost of Rs.10,000/- to be deposited with Delhi Legal Services Authority.
Trial court record be sent along with copy of this order. Revision file be consigned to Record Room.
SIGNED AND ANNOUNCED
IN OPEN COURT ( HEMANI MALHOTRA )
TODAY ON 13th FEBRUARY 2015 ADDL.SESSIONS JUDGE -05
CENTRAL DISTT/THC/DELHI
Order dated 13.2.2015 in Criminal Rev. Nos. 37/14 ,19/15, 20/15, 21/15, 22/15, 23/15, 24/15 and 25/15 11 of 11