Punjab-Haryana High Court
Puneet Vatsayan vs Altruist Technologies Private Ltd on 29 January, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
Criminal Misc. No.M-27127 of 2013 (O&M)
.....
Date of decision:29.1.2014
Puneet Vatsayan
...Petitioner
v.
Altruist Technologies Private Ltd.
...Respondent
....
Coram: Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Tajender K. Joshi, Advocate for the petitioner.
Mr. Vikas Chaudhary, Advocate for the respondent.
.....
Inderjit Singh, J.
Puneet Vatsayan-petitioner has filed this petition against Altruist Technologies Private Ltd. under Section 482 Cr.P.C. praying for quashing of the complaint titled as M/s Altruist Technologies Private Ltd. v. Puneet Vatsayan, pending in the Court of Judicial Magistrate Ist Class, Chandigarh, filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as `the NI Act') against the petitioner and further for quashing of summoning order dated 15.4.2013 and all consequential proceedings.
In the petition, it is mainly stated that petitioner is Director No.1 M/s Mobera Systems Private Limited (hereinafter referred to as `MSPL') is a private limited company and is also having all the shares of Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-27127 of 2013 (O&M) [2] this Company along Anupama Arya. The paid capital of this Company is `9.8 Crores and petitioner and Anupama Arya are having its all shares and there is no other share-holder. They have also another company, namely, M/s Mobera Advanced Technologies Private Limited (hereinafter referred to as `MATPL') and petitioner and Anupama Arya are its Directors. The paid capital of petitioner No.1 is `1 Lac only and petitioner and Anupama Arya are having its all shares and there is no other share-holder. In the year 2008, MSPL was allotted a plot bearing No.18, Sector 22, I.T. Park, Panchkula, measuring 3600 sq. meters by the HSIIDC and it is in actual physical possession of the same. The MSPL obtained sanction of building plans from HSIIDC for proposed construction and subsequently all permissions/NOCs from the Ministry of Environment and Forests, Fire and Civil Aviation Departments have also been obtained. Besides this, electricity and water connections were also obtained. The respondent through its Director Anuj Aggarwal approached the petitioner and showed interest in the proposed construction on the above said site and became interested to take on lease first and second floors of the proposed building having total area measuring 25,000 sq. feet along with 75% car parking slot on the upper level basement of the building after the completion of construction and he desired that proposed construction should be undertaken under his supervision and for that he will charge consultation charges. An agreement to Lease dated 1.2.2012 was executed between the petitioner and the respondent. The respondent agreed to pay a refundable interest free security deposit amounting to `10 Crores as "Security Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-27127 of 2013 (O&M) [3] Deposit" as described in the petition. Further, as per the above said agreement the term of the Lease Agreement shall be 50 years and the rent would be `2,50,000/- per month. The security deposit was secured by way of pledge of 50,86,486 equity shares held by Puneet and 47,21,344 equity shares held by Anupama in MSPL, pledge of 6,000 equity shares held by MSPL, 2,000 equity shares held by Puneet and 2,000 equity shares held by Anupama in MATPL and post-dated cheques of `5 Crores by M/s Mobera Systems Private Limited in favour of the respondent bearing No.386214, post-dated cheque of `5 Crores by M/s Mobera Advanced Technologies Private Ltd. in favour of the respondent bearing No.257509, 9 post-dated cheques of `1 Crore each by Puneet, petitioner No.2, in favour of Altruist totalling `9 Crores bearing Nos.742633, 742634, 742635, 742636, 742637, 742638, 742639, 742640, 742641 and post-dated cheque of `1 Crore by Anupama in favour of the respondent bearing No.158792. It is also stated that the respondent had deposited all the above stated cheques for `20 Crores in the Bank and got these dishonoured and sent legal notices under Section 138 of the NI Act for the above said cheques. The petitioner replied to the legal notice sent by the respondent by sending detailed reply dated 25.3.2013. The respondent had misused the above 12 cheques of `20 Crores. The petitioner accordingly filed civil suit for mandatory injunction to hand over the shares pledged with it and also to hand over the cheques given by the petitioner. The respondent filed criminal complaint under Section 138 of the NI Act in the Court and the learned Judicial Magistrate Ist Class Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-27127 of 2013 (O&M) [4] passed summoning order dated 15.4.2013. The petitioner also filed application under Section 258 Cr.P.C. The petitioner, Anupama Arya and their Companies have also received the summons in another 11 complaints and they also challenged the complaint and summoning orders in another complaints also.
It is also stated that 12 complaints including the complaint under challenge in the present petition has been filed by the respondent- complainant, who has given only `5 Crores to the petitioner as per Agreement of Lease but the respondent had presented cheques for `20 Crores in the bank and filed 12 complaints. It is also stated in the petition that the event of default has been defined in Clause 3 of the above said agreement to Lease.
Notice was given to the respondent to appear and file reply. The respondent has filed reply contesting the present quashing petition. It is stated that the petitioner is suppressing material facts. It is further stated in the reply that petitioner and Anupama Arya approached the respondent with an offer to provide office space at competitive rates. Since the respondent found the proposal lucrative as the market rate was much higher than the offered rate by the petitioner, the respondent readily agreed. The petitioner then, in continuance of his cunning plans, asked the respondent to advance a loan of `10 Crores for a period of nine months, since the petitioner assured the respondent that the construction shall be completed within the said period of nine months and also assured the respondent that the loan advanced by it shall be returned within the Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-27127 of 2013 (O&M) [5] period of nine months since he was expecting a loan amount of `20 Crores from the Bank. In pursuance thereto, an agreement was executed. As per Clause `C' of the agreement, the said agreement was to be in force for a period of nine months from the Security Deposit date and according to Clause `2.1', the Security deposit date was the date of the agreement i.e. 1.2.2012. It is also agreed that the parties shall enter into a separate lease agreement after the construction completion date i.e. nine months after the Security Deposit date. The schedule for the disbursement of the loan was enumerated in clause `2.1' of the agreement i.e. `2.6 Crores directly in favour of HSIIDC on the date of signing of agreement i.e. 1.2.2012, `2.4 Crores in favour of MSPL on the date of signing of the agreement and `5 Crores in favour of MSPL within four weeks of the agreement. The agreement was entered into between the parties to secure the loan advanced by the respondent to the petitioner and a separate Lease Agreement was to be entered within ten days of the construction completion date. To secure the loan, the petitioner also pledged 100% shares of MSPL and MATPL and issued post-dated cheques of the Company and also of its Directors in their individual capacity. The events of default were enumerated in Clause `3' and the remedies for the event of default were enumerated in Clause `4' and deposits were enumerated in Clause `6' of the agreement. Immediately after disbursement of `5 Crores, the respondent came to know that the petitioner had satisfied their previous liabilities from the funds given by the respondent for the purpose of construction, whereas the petitioner had assured that the said amount Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-27127 of 2013 (O&M) [6] shall be utilized for the construction of the proposed building. Thereafter, the respondent waited for another three weeks and the petitioner kept on assuring that the construction shall be commenced any day. Sensing the mala fides of the petitioner, the respondent restrained itself from disbursing remaining amount of `5 Crores. When the respondent verified the antecedents of the petitioner, it came to know that the petitioner was not holding a good reputation in the business community and their Company was shown as a defaulter on the web site of Ministry of Corporate Affairs. When the respondent asked for clarification, petitioner No.2 in turn kept on giving false assurances to the respondent regarding removal of the defects for which the Company was shown as defaulter on the web site of Ministry of Corporate Affairs. It is also stated in the reply that the respondent has agreed to disburse the loan when the construction of the proposed building could not even be started.
At the time of arguments, learned counsel for the petitioner argued that the respondent had paid only `5 Crores and as per agreement remaining `5 Crores have not been paid. The respondent though had paid only `5 Crores to the petitioner, but he presented the cheques of `20 Crores to the Bank despite the pledging of all the shares of MSPL and MATPL. Learned counsel for the petitioner at the time of arguments also argued that remedies in the event of default are mentioned in the agreement to first sell shares and for the remaining amount he could present the cheques.
On the other hand, learned counsel for the respondent argued Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-27127 of 2013 (O&M) [7] that a fraud has been committed by the petitioner and Anupama Arya. They used the amount to discharge the previous liability and they have not started the construction as per the agreement. There is nothing in the agreement to sell the pledged shares first. It is also stated that addendum to principal agreement to lease dated 1.2.2012 was also executed between the parties, which is Annexure-R.2. As per clause `3' of this addendum itself it is written that if MSPL, MATPL fails to repay `5,60,00,000/- on or before above stated date then all the pledged shares of MSPL and MATPL will be transferred to Altruist and rate of interest will be charged as 3% per month from the month of October on `5,60,00,000/-, till the date of repayment and the liability will become personal liability of Puneet and Anupama. Altruist will not take any seen, unseen or contingent liability either statutory or otherwise of MSPL and MATPL which has arisen or may arise or which is related to the period, on or before October 1, 2012. Learned counsel for the respondent also argued that all these facts show that the petitioner wanted to quash complaint on the basis of facts which are in dispute and which are to be determined by the trial Court on the basis of evidence.
I have gone through the record and have heard learned counsel for the petitioner and learned counsel for the respondent.
From the record, I find that it is admitted fact that the cheques have been issued by the petitioner to the respondent. These cheques one by one has been presented in the Bank and all these cheques were dishonoured with the remarks "payment stopped by drawer". These Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.M-27127 of 2013 (O&M) [8] cheques have not been presented on the same day. Rather, these cheques were presented one by one and all the cheques were dishonoured with the remarks "payment stopped by drawer".
As regards issuing of post-dated cheques by the petitioner to the respondent to be presented to the Bank in the event of default, the same have been presented and have been dishonoured. There is also no dispute that the respondent had paid `5 Crores already to the petitioner. There is nothing on the record to show that in the event of default the pledged shares must be sold first and then to present the cheques.
Otherwise also, in the quashing petition, this Court is not to decide the disputed facts between the parties which are to be decided on the basis of evidence before the trial Court. At this stage, it is proved that the cheques have been issued to discharge the liability, which have been dishonoured on the ground of "payment stopped by drawer". Legal notice has already been issued which was duly replied and the complaint has been filed and on the basis of the preliminary evidence the petitioner has been summoned. No illegality has been shown in the summoning order nor there is anything that no offence is made out from the complaint. Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh
Cr. Misc. No.M-27127 of 2013 (O&M) [9] As regards the fact that the complaint has been filed on the basis of these cheques amounting to `20 Crores, whereas the liability is only `5 Crores, I find that at this stage, in no way, it can be held that only one complaint on the basis of `5 Crores be continued and the remaining to be quashed. It is for the trial Court while deciding the cases on merit to take into consideration this fact. At this stage, I do not find any ground to quash the complaint.
At this stage, also it cannot be held that no offence is made out from the complaint nor it can be held that there are no sufficient grounds to proceed against the present petitioner. From the record, there is nothing to say that this complaint is, in any way, misuse of the process of the Court/law.
Therefore, finding no merit in the petition, the same is dismissed.
January 29, 2014. (Inderjit Singh) Judge *hsp* Parmar Harpal Singh 2014.03.11 17:36 I attest to the accuracy and integrity of this document Chandigarh