Delhi District Court
Anwar Khan Proprietor Of Ak Fitness vs The State on 4 November, 2023
CR No. 492/2023
Anwar Khan Vs. State
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, PRINCIPAL
DISTRICT & SESSIONS JUDGE, SOUTH-EAST DISTRICT:
SAKET COURTS: NEW DELHI
CR No. 492/2023
Anwar Khan
S/o Shri Saleem Khan
R/o B-38, Ground Floor,
Nizamuddin West
New Delhi-110013
2. A.K. Fitness
Through its Partner & Proprietor
At 26-A, Hospital Road
Jangpura, New Delhi-110014
......Petitioners/Revisionist
Versus
1. The State (GNCT of Delhi)
2. Alif Design Solutions Pvt. Ltd.
F-13/30, Ist Floor, Joga Bai Extension
Okhla, Jamia Nagar,
New Delhi-110025
.........Respondents
Date of filing : 03.08.2023 Arguments heard on : 30.10.2023 Date of pronouncement : 04.11.2023 Order
This is a revision petition against the order dt. 26.07.2019 passed by the Ld. Trial Court in CC No. 14797/2019, whereby the trial court has issued the summons against the revisionist under section 138 of Negotiable Instrument Act Page No. 1 of 5 CR No. 492/2023 Anwar Khan Vs. State (hereinafter be referred to as NI Act).
2. I have heard the Ld. Counsel for the revisionist and Ld. Counsel for the respondent and perused the file.
3. In brief the case of the complainant (respondent herein) is that the accused (revisionist herein) issued three cheques in question for the amount of Rs. 1,50,000/- each to the complainant in consideration towards the payment of the work of interior designing and interior works done to the satisfaction of the accused as per the agreement executed between the parties. On presentation, the cheques in question were dishonoured due to reasons of "Funds Insufficient" vide dishonoured memo dated 17.052019. Thereafter, the complainant issued the statutory legal notice dated 10.06.2019 to the accused. The accused has replied to the statutory legal notice vide reply dt. 25.06.2019. Again on 26.06.2019, the complainant presented the cheques in question in the concerned bank which were dishonoured due to reasons of "Funds Insufficient" on 28.06.2019.
4. Ld counsel for the revisionist has argued that the trial court has passed the impugned order without considering the material on record and it is based on presumptions and assumptions. The complaint is liable to be dismissed as the complaint has been filed without the compliance of basic ingredients of section 138 NI Act. The respondents has not issued the legal notice to the revisionist after the dishonouring of the cheques in question in second time and so there is no cause of action to file the complaint against the revisionist. On these grounds it is prayed that impugned order be set aside.
On the other hand, Ld counsel for the respondent has argued that the respondent has filed the complaint against the revisionist within the period of limitation as the revisionist has failed to make the payment of the cheques in Page No. 2 of 5 CR No. 492/2023 Anwar Khan Vs. State question within 15 days from the receipt of statutory legal notice dated 10.06.2019. The presentation of the cheques in question in the bank for the second time and their dishonouring has not given any fresh cause of action to the respondent as no legal notice has been given to the revisionist on the dishonouring of the cheques in question for the second time. It is prayed that the revision petition is without any merit and it be dismissed.
5. Section 142 and 138 of NI Act reads as follows:-
Section 142. Cognizance of offences:
(1) Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974)
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
Section 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts xxxxxxx PROVIDED that nothing contained in this section shall apply unless-
(a) ......
(b).....
(c) the drawer of such cheque fails to make the payment of the said Page No. 3 of 5 CR No. 492/2023 Anwar Khan Vs. State 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.
It has also been observed by the Hon'ble High Court of Delhi in Cr. A. 953 of 2018 decided on 26.092018 in Rajender Vs. Yogender Tyagi as follows:-
30. Section 138 of NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz (a), (b) and (c) of the proviso. The offence under section 138 is made effective only on fulfillment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof wold not constitute an offence by itself under section 138.
From the aforesaid provisions and the judgment, it is evident that the respondent is legally entitled to file the complaint under section 138 of NI Act within one month from the date of cause of action that arisen under clause (c) of the proviso to section 138. The cause of action has arisen to the respondent to Page No. 4 of 5 CR No. 492/2023 Anwar Khan Vs. State file the complaint as the revisionist has failed to make the payment of the alleged amount to the respondent within the fifteen days of the receipt of alleged statutory notice dated 10.06.2019.
In the absence of any further steps by the respondent as required under section 138 of NI Act, the presentation of the cheques in question for the second time in the bank does not create any fresh cause of action to file the complaint under section 138 of NI Act and also it does not extinguish the cause of action which has already arisen to the respondent as discussed above.
6. In view of the above discussions, I do not find any illegality or infirmity in the impugned order dated 26.07.2019 of Ld. Trial Court and the same is upheld. Accordingly, the revision is dismissed without being any merits.
7. Nothing expressed herein shall tantamount to any expression on the merits of the case.
8. Trial court record be sent back along with copy of order. The revision file be consigned to the record room.
Announced in the open court (RAJNEESH KUMAR GUPTA) today i.e. 04.11.2023 Principal District & Sessions Judge, South East, Saket Courts New Delhi Page No. 5 of 5