Delhi District Court
Dinesh Kumar Jain vs Sh. Rameshwar Dayal Jain on 23 January, 2020
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE02: E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
Crl. (R) No. 200/2019
1. Dinesh Kumar Jain
Vice Chairman/Managing Director (suspended),
M/s. Lakshmi Precision Screws Ltd.
764/28, Bharat Colony,
Model Town, Rohtak124001.
........... Revisionist
Versus
1. Sh. Rameshwar Dayal Jain
S/o. Sh. R.D.Jain
"Karta" of Rameshwar Dayal Jain & Sons (HUF)
R/o. C13, Vivek Vihar,
Delhi110095.
............ Respondent
And
Crl. (R) No. 201/2019
1. Dinesh Kumar Jain
Vice Chairman/Managing Director (suspended),
M/s. Lakshmi Precision Screws Ltd.
764/28, Bharat Colony,
Model Town, Rohtak124001.
........... Revisionist
Versus
1. Sh.Arun Kumar Jain
S/o. Sh. R.D.Jain
"Karta" of Arun Kumar Jain & Sons (HUF)
_________________________________________________________________________
CR No. 200 to 203/19 Page 1 of 7 Dinesh Kumar Jain Vs.
Rameshwar Dayal Jain, Arun Kumar Jain &
Yogendra Kumar Jain
R/o. C13, Vivek Vihar,
Delhi110095.
............ Respondent
And
Crl. (R) No. 202/2019
1. Dinesh Kumar Jain
Vice Chairman/Managing Director (suspended),
M/s. Lakshmi Precision Screws Ltd.
764/28, Bharat Colony,
Model Town, Rohtak124001.
........... Revisionist
Versus
1. Sh.Yogendra Kumar Jain
S/o. Sh. R.D.Jain
"Karta" of Yogendra Kumar Jain & Sons (HUF)
R/o. C13, Vivek Vihar,
Delhi110095.
............ Respondent
And
Crl. (R) No. 203/2019
1. Dinesh Kumar Jain
Vice Chairman/Managing Director (suspended),
M/s. Lakshmi Precision Screws Ltd.
764/28, Bharat Colony,
Model Town, Rohtak124001.
........... Revisionist
Versus
1. Sh.Yogendra Kumar Jain
S/o. Sh. R.D.Jain
"Karta" of Yogendra Kumar Jain & Sons (HUF)
R/o. C13, Vivek Vihar,
_________________________________________________________________________
CR No. 200 to 203/19 Page 2 of 7 Dinesh Kumar Jain Vs.
Rameshwar Dayal Jain, Arun Kumar Jain &
Yogendra Kumar Jain
Delhi110095.
............ Respondent
ORDER
1. By way of present common order I propose to decide above mentioned four revision petitions preferred by revisionist Dinesh Kumar Jain u/s. 397, 398 & 399 of Cr.P.C against the summons dt. 20.11.2018 passed in C.C no.5318/2018, 5319/18, 5320/18 & 5321/18 by Sh. Pankaj Arora, Ld. MM, Karkardooma Courts, Delhi as common question of facts and law is involved in all the revision petitions. An application u/s. 5 of Limitation Act seeking condonation of delay in filing the revision petitions is also filed in all the four petitions.
2. Arguments have been advanced by Sh. Arun Saxena, Ld. Counsel for revisionist as also by Sh. Surender Chauhan, Ld. Counsel for respondents.
3. All the four revision petitions have been filed mainly on the grounds that impugned order is bad in law as such the same is liable to be set aside; that return memo was issued by the bank on 18.08.2018 and legal notice was issued on 18.09.2018 i.e 31 days after issue of return memo; that cheques no. 686917, 686918 & 686919 dt. 16.08.2018 in CC No. 5318/2018 do not bear the signatures of revisionist; that Ld. Trial Court failed to appreciate that legal notice was time barred u/s. 138 (b) of NI Act; that condoning the delay u/s. 138 (b) of NI Act is untenable in law and is outside the purview of _________________________________________________________________________ CR No. 200 to 203/19 Page 3 of 7 Dinesh Kumar Jain Vs. Rameshwar Dayal Jain, Arun Kumar Jain & Yogendra Kumar Jain aforementioned section and powers of Ld. Metropolitan Magistrate and that in case titled B.K.Sarkar & Anr. Vs. State of Gujarat & Anr. (MANU/GJ/7540/2007, 2008 CriLJ 1230, Hon'ble High Court of Gujarat allowed a petition for quashing of summons and complaint due to delay of one day in serving of legal notice upon the petitioner u/s. 138 (b) of NI Act.
4. In brief, the relevant facts in all the four revision petitions are that respondents Rameshwar Dayal Jain, Arun Kumar Jain & Yogendra Kumar Jain filed complaint cases u/s. 138 r/w section 141 of Negotiable Instrument Act against the revisionist claiming that complainant is engaged in the business of trading and manufacturing of metal and nonferrous metal and accused no.2 to 5 are the Managing Director, Directors and VicePresident of accused no.1 company i.e M/s. Laxmi Precision Screw Ltd. It is stated that complainant made a deposit of principal amount of Rs.75,00,000/, Rs.75,00,000/, Rs.78,00,000/ and Rs. 2,22,00,000/ with the accused no.1 at an interest of 18% per annum on 04.10.2013 with due date of maturity on 03.10.2016. It is stated that accused no.1 was unable to pay the said deposit to the complainant, therefore, an application u/s. 74 (2) of the Companies Act was moved by accused persons for extension of time before Company Law Board and ultimately accused no.2 to 5 executed a fresh settlement dt. 12.02.2016 duly signed by all the parties with an undertaking to make the payment of the deposits and issued cheques as mentioned in the complaint. Complainant presented the cheques to his banker but same were returned unpaid vide return memo dt. 18.08.2018 with the remarks "drawers signature differ" and "account closed", which was received by the complainant on 20.08.2018. The legal notice was dispatched through speed registered post on 18.09.2018 which was _________________________________________________________________________ CR No. 200 to 203/19 Page 4 of 7 Dinesh Kumar Jain Vs. Rameshwar Dayal Jain, Arun Kumar Jain & Yogendra Kumar Jain served upon the accused on 22.09.2018. As the accused did not make the payment despite service of legal notice complaint cases were filed.
5. Ld. Counsel for revisionist argued that the return memo by the bank was issued on 18.08.2018 and the respondent got issued the legal notice on 18.09.2018 i.e after 31 days of the issue of return memo and therefore, the complaint is not maintainable as legal notice was time barred. It has been further submitted that there is no provision for condonation of delay in section 138 of NI Act. Ld. Counsel for revisionist has drawn my attention in respect of an authority reported as B.K.Sarkar & Anr. Vs. State of Gujarat & Anr. (MANU/GJ/7540/2007, 2008 CriLJ 1230.
6. Per contra, Ld. Counsel for respondents argued that the legal notice was issued within 30 days from the date of receipt of return memo regarding dishonour of cheques. It has been further argued that return memos dt. 18.08.2018 were received by the respondent/complainant on 20.08.2018 and the legal notice was issued on 18.09.2018 as also mentioned in the legal notice. Ld. Counsel for respondents further argued that even otherwise one day i.e the date of return memo is to be excluded while computing limitation for issuing legal notice and if we consider the said rule the notice was issued within limitation period of 30 days.
7. Firstly coming to the application for condonation of delay in filing the revision petitions, the revisionist has stated that he is an old age person aged about 72 years and is suffering from one ailment or another and the summons which were delivered at the address of revisionist at Rohtak to _________________________________________________________________________ CR No. 200 to 203/19 Page 5 of 7 Dinesh Kumar Jain Vs. Rameshwar Dayal Jain, Arun Kumar Jain & Yogendra Kumar Jain his caretaker were returned to him on 20.07.2019, therefore, he filed the revision petition on 30.07.2019. Revisionist has also filed his affidavit in support of his contention. In view thereof, delay in filing the revision petition is condoned.
8. The main contention of Ld. Counsel for revisionist is that there is a delay of one day in issuing the legal notice as the return memo was issued by the bank with regard to the cheques which are subject matter of all the four revision petitions on 18.08.2018 but legal notice was issued by the complainant/respondents on 18.09.2018 i.e after 31 days and thus, it was submitted that the impugned order issuing the summons is liable to be set aside. Perusal of copies of complaints as annexed with the revision petitions shows that complainant has stated that cheque return memo dt. 18.08.2018 was received by the complainant on 20.08.2018 and legal notice dt. 18.09.2018 in all the four cases was dispatched through speed post, registered post on 18.09.2018. It was submitted by Ld. Counsel for revisionist that there are 31 days in the month of August, therefore, legal notice should have been issued within 30 days. Ordinarily in computing the time, the rules observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for issuing the legal notice will be reckoned from the day immediately following the day on which the return memo was issued. (reliance is placed upon the judgment of Hon'ble Supreme Court in Saketh India Ltd Vs. India Security Ltd. 1999 3 SCC). As in the present revision petitions admittedly the return memos are dt. 18.08.2018 and legal notice was dispatched through speed, registered post on 18.09.2018 and if we exclude one day i.e the day on which return memo was issued the legal notice _________________________________________________________________________ CR No. 200 to 203/19 Page 6 of 7 Dinesh Kumar Jain Vs. Rameshwar Dayal Jain, Arun Kumar Jain & Yogendra Kumar Jain in all the four complaint cases was issued within 30 days. Therefore, I do not find any force in the contention of Ld. Counsel for revisionist that there is delay of one day in issuing the legal notice by the complainants.
9. In view of above, I am of the opinion that there is no illegality in the issuance of process by Ld. Trial Court against revisionist. Accordingly, all the four revision petitions stand dismissed. A copy of this order be sent to Ld. Trial Court. Revision files be consigned to record room. SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR Announced in the open court MALHOTRA Location:
Karkardooma Courts, Delhi Date: 2020.01.23 on 23.01.2020 15:58:26 +0530 (Sanjeev Kumar Malhotra) ASJ02/ECOURT Shahdara/KKD/Delhi _________________________________________________________________________ CR No. 200 to 203/19 Page 7 of 7 Dinesh Kumar Jain Vs. Rameshwar Dayal Jain, Arun Kumar Jain & Yogendra Kumar Jain