Delhi High Court
Harinder Dhingra vs State And Anr. on 20 December, 2006
Equivalent citations: 2(2007)BC215
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. The complainant Lalit Kumar Jain has filed complaint under Section 138 of the Negotiable Instruments Act (in short the 'NI Act') on the basis of dishonour of cheque No. 720385 dated 8.4.2005 drawn on Bank of Punjab Ltd., Hemkunt Chambers, New Delhi, which was in the sum of Rs. 6,41,417/-. This cheque was presented on 8.4.2005 and was returned unpaid on 9.4.2005 giving the reason 'Funds Insufficient' in the cheque returning memo dated 9.4.2005. Notice was sent by registered AD post as well as approved courier at the address of the petitioner Harinder Singh Dhingra. Notice sent by Speed Post AD was returned with the remarks 'refused' and the notice sent through courier was also returned unserved with the remarks 'no such person or company at the given address'. Thereafter, the petitioner filed the complaint in which summoning orders were issued, which orders could not be served. Thereafter, vide order dated 20.5.2006 on the application of the complainant, non-bailable warrants were issued against the petitioner herein. At this juncture, present petition is filed. When this petition came up for hearing on 26.6.2006 the Vacation Judge passed the order directing the petitioner to deposit a sum of Rs. 6,41,470/- in this Court and subject to this deposit, it was directed that the petitioner shall not be arrested. This amount was deposited and on the deposit of this amount, notice was issued on 30.6.2006. After the notice was issued, the respondent appeared and the matter was argued.
2. The contention of the petitioner on the basis of which the petitioner is seeking quashing of the summoning order and dismissal of the complaint is that the petitioner is an exporter of readymade garments doing business under the name and style of M/s. Golden Harvest. There is another company called M/s. Elegance Fabric Pvt. Ltd. (hereinafter referred to as 'Elegance'), which is managed by his wife, who is doing independent business of garment export. The complainant had approached Elegance to supply silk fabric to it through one M/s. Thakur and Associates, who is working as acommission agent. After negotiations, the respondent No. 2/complainant started supplying silk fabric to Elegance. In discharge of the liability the petitioner issued two cheques to the complainant from an account maintained by his firm M/s. Golden Harvest. Both the cheques were returned unpaid and the respondent No. 2, therefore, issued notice dated 14.4.2005 to the petitioner under Section 138 of the NI Act, which was replied to by the petitioner vide reply dated 3.5.2005. Thereafter, the respondent No. 2 approached the petitioner and received the said amount in cash from the petitioner and also returned the unpaid cheques. However, the petitioner was shocked to receive the summons in the present complaint pursuant to summoning order dated 16.2.2006 showing that the petitioner was proprietor of M/s. Thakur and Associates. It is the submission of the petitioner that the cheque in question is issued by the firm M/s. Thakur and Associates, which is owned and managed by Mr. Sanjeev Thakur and the petitioner has nothing to do with this and has no concern with the said M/s. Thakur and Associates except that this firm was the intermediary and commission agent of the respondent No. 2/ complainant. It is further stated that it is falsely averred that the cheque in question, which is dishonoured, was signed by the petitioner or the person who is the proprietor and authorised signatory. Thus, in nutshell, the case of the petitioner is that the petitioner is not the proprietor of M/s. Thakur and Associates and has not issued the cheque in question, which is dishonoured and on the basis of which, the complaint is filed and, therefore, the petitioner cannot be held responsible for the dishonour of this cheque, which is issued by M/s. Thakur and Associates, sole proprietorship concern of Mr. Sanjeev Thakur.
3. Case of the complainant, on the other hand, is that it is the petitioner who represented himself to be the sole proprietor of M/s. Thakur and Associates and always dealt with the complainant in that capacity.
4. If what the petitioner says is correct, the complaint cannot proceed against the petitioner inasmuch as, as per the averments made by the petitioner, he is not the signatory of the cheque. In respect of cheque for Rs. 6,41,417/- the petitioner through Counsel in reply dated 3.5.2005 stated as under:
(e) Para 6 is matter of record as decided by you and my clients it was agreed that the cheque will be returned to him and another cheque from Thakur Associates will be given to you hence the cheque was not to be presented in bank. My clients has already given your client a cheque of Rs. 6,41,417/- through Thakur Associates who had introduced you to us. In fact during the meeting on 13.4.2005 you had returned the cheque bearing No. 125344 dated 18.3.2005 for Rs. 6.41,417/- drawn on Hongkong and Shangai Banking Corporation Ltd. JMD Regent Square, DLF Phase II, Mehrauli Gurgaon Road, Gurgaon-122002.
5. As per the averment in this para, cheque dated 18.3.2005 for Rs. 6,41,417/-was not to be presented as the petitioner had given the complainant another cheque of Rs. 6,41,417/- through M/s. Thakur and Associates, who had introduced the complainant to the petitioner. The receipt of this reply is not denied by the complainant and from this it clearly emerges that the cheque in question, which is now dishonoured, was given from the account of M/s. Thakur and Associates and M/s. Thakur and Associates were known to the complainant as it is M/s. Thakur and Associates, who got the petitioner introduced to the complainant. It is. thus, clear from this that it was not the representation of the petitioner that M/s. Thakur and Associates was the sole proprietorship concern of the petitioner. Moreover, when the cheque in question is admittedly signed by M/s. Thakur and Associates, sole proprietorship concern of Mr. Sanjeev Thakur and the petitioner is not the drawer of the cheque, as per the provisions of Section 138 of the NI Act, complaint against the petitioner could not have been filed. It may be noted that the petitioner has also placed on record certificate from Mr. Sanjeev Thakur, proprietor of M/s. Thakur and Associates, confirming that he had issued the cheque in question and the case of the petitioner is that there were transactions between the petitioner and M/s. Thakur and Associates on the one hand and the petitioner and the complainant on the other hand and since M/s. Thakur and Associates had received the payments from Elegance, he had issued the cheque in favor of the complainant to discharge the liability of the petitioner qua the complainant as it had to make this payment to Elegance. It is not necessary to go into this question. However, since the cheque is issued by M/s. Thakur and Associates, which has been dishonoured, coupled with the certificate given by M/s. Thakur and Associates, the respondent/complainant shall be entitled to proceed against M/s. Thakur and Associates for recovery of the amount in question.
6. This petition is accordingly allowed. The summoning order is, therefore, quashed and the complaint is dismissed.