Delhi District Court
Marco Francesco Shoes (India) Pvt. Ltd vs I.A. Trade Links Private Limited on 25 September, 2014
(1)
IN THE COURT OF SH. GIRISH KATHPALIA, ASJ05,
SOUTH EAST DISTRICT, SAKET, NEW DELHI
CR No. 52, 53, 54 and 55 of 2014
1. Marco Francesco Shoes (India) Pvt. Ltd.
A company incorporated under the
Companies Act, 1956
Having its registered office at
1st floor, 35, Main IGNOU Road,
Above Corporation Bank,
New Delhi 110068
Through its Director Mr.Agnibesh Das Gupta
2. Agnibesh Das Gupta
S363, Greater KailashII,
New Delhi110048 .....Revisionists
vs
I.A. Trade Links Private Limited,
A company incorporated under the
Companies Act, 1956,
Having its registered office at
41/11, New Raja Mandi Colony,
Agra, Uttar Pradesh .....Respondent
Date of Institution : 21.08.2014
First date in this court : 21.08.2014
Decided on : 25.09.2014
JUDGMENT (oral)
1. These four revision petitions having arisen out of four complaint cases between same parties are taken up together for CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 1 of 9 Pages (2) disposal. Revisionists, who are accused persons before the Ld. Trial Magistrate in proceedings under section 138 Negotiable Instruments Act have challenged the order dated 5.8.2014 of the Ld. Magistrate, whereby claim of the revisionists to be discharged was rejected and the revisionists were directed to appear and received notice under section 251 Cr.P.C.
2. On the last date, upon assignment of these fresh revisions to this court, preliminary hearing was carried out in which the Ld. Counsel for the revisionists referred to the second last paragraph of the impugned order, whereunder the Ld. Magistrate had allowed rectification of the document, namely the notice under section 138 Negotiable Instruments Act.
3. Today I have heard learned counsel for both sides and perused the trial court record.
4. Briefly stated, the present respondent is involved in manufacture of shoes and as claimed by the present respondent, the revisionists being its distributors, issued in discharge of their liability, five cheques in favour of the present respondent for five different amounts, one such amount being Rs. 12,79,935/. When those five cheques returned dishonoured, the present respondent allegedly issued the statutory notices as regards those five cheques CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 2 of 9 Pages (3) and upon failure of payment within statutory period, the respondent filed five criminal complaints against the revisionists for offence under Sec. 138 Negotiable Instruments Act. Alongwith those five complaints, the present respondent also filed documents including the statutory notices. On the basis of pre summoning evidence, the learned Magistrate issued summons in those five cases to the present revisionists for offence under Sec. 138 Negotiable Instruments Act. The revisionists appeared before the learned Magistrate and claimed that they are entitled to be discharged in four of those five cases mainly on the grounds of defective statutory notices in four cases. After hearing both the sides, the learned Magistrate rejected the claim of the revisionists as regards the alleged defect in the statutory notices and directed the revisionists to receive notice under Sec. 251 Cr.P.C in all those five cases, by way of impugned order dated 05.8.2014.
5. Learned counsel for revisionists took me through the impugned order as well as the copies of notices from trial court record and pointed out that the said four notices are invalid in the eyes of law since the cheque amount mentioned in all those four notices, which are at the foundation of these revisions is incorrect. As per the overall case of the respondent before the trial court, the CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 3 of 9 Pages (4) four cheques involved in these cases pertained to different amounts but in the operative part of the statutory notices, same amount of Rs. 12,79,935/ was mentioned and that being so, the notices are defective and consequently the complaints under Sec 138 Negotiable Instruments Act must fail as per revisionists. Learned counsel for the revisionists submitted that the learned Magistrate ought not to have ignored the said defect as a mere clerical error while rejecting the contention of the revisionists that the notices are defective. It was further argued by learned counsel for revisionists that the proceedings under Sec. 138 Negotiable Instruments Act being penal proceedings, the interpretation to be followed by the court has to be the strict interpretation and going by that, the notices were invalid. It was further argued that the learned Magistrate did not have power to allow rectification of the notices, which was done in the second last paragraph of the impugned order. It was argued that in view of the wordings of the provision under Sec. 138 Negotiable Instruments Act, it is the amount demanded which is significant and where the amount demanded is not the amount of the cheque, the complaint must fail.
6. Learned counsel for respondent argued that the notices have to be read in entirety and cannot be dissected while CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 4 of 9 Pages (5) interpreting the same. It was explained by learned counsel for the respondent that since between the same parties and pertaining to similar transactions, five cheques of different amounts were issued, it was only on account of typographical error that in the operative paragraphs of the notices, clerk of the counsel mentioned by mistake same amount. Learned counsel for respondent specifically pointed out that para 4 of the statutory notices gives complete details of the cheques in question with exact and accurate cheque amounts.
7. At the very outset, during the arguments, learned counsel for respondent also did not seriously challenge that the learned Magistrate could not have allowed rectification, which is in the nature of amendment, and that too not of the complaint but of the statutory notices, which are documents. So far as the second last paragraph of the impugned order is concerned, there is no dispute that the same is not sustainable in the eyes of law.
8. Thence the short question involved is whether the statutory notices, para 4 whereof describes the complete particulars of the cheques in question accurately including the cheque numbers as well as amounts, in view of mentioning of wrong amount in the operative part of the notices, the statutory notices become invalid and consequently, the complaints are liable to fail. CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 5 of 9 Pages (6)
9. It needs to be appreciated that the purpose of any notice is to apprise the addressee about the claim of the addressor. It is equally trite that every document in every legal proceedings has to be read in its entirety and not in piecemeal. Of course, the penal provisions must be construed strictly, but that does not mean that while doing justice, the courts have to be totally phlegm to the possibility of human errors.
10. As mentioned above, no doubt in the operative part of the statutory notices, there was an error in the amount demanded, which error is quite possible, as sought to be explained by the respondent that there were five different cheques of different amounts between the same parties involving similar transactions. Even the wrong amount mentioned in the operative paragraph of those four statutory notices pertaining to four of these cases is infact the amount involved in the fifth case, which is already proceeding before the learned Magistrate.
11. It is not a case where except the wrong amount in operative part of the statutory notices, no other particulars were mentioned. As mentioned above, para 4 of these statutory notices specifically discloses the cheque number, the date, the bank name and even specific amount. The purpose of the statutory notice is to CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 6 of 9 Pages (7) inform the drawer of the cheque that the particular cheque drawn by him has got dishonoured, so he is called upon the pay the cheque amount within the statutory period. It cannot be said that having read the entire notices, the present revisionists did not come to know the amount of the dishonoured cheques and the demand of the amount thereof by the respondent.
12. As rightly observed by the learned Magistrate, the facts in the case of Rahul Builders, cited on behalf of the present revisionists before the learned Magistrate were distinct in the sense that in the said case the demand made was not of the cheque amount but of all the pending bills. In contrast, in the present case, even in the operative part of the notices, the wrong amount is prefixed with the expression "dishonoured cheque amount".
13. In the case of United Credit Limited, Calcutta vs Agro Sales India, (2001) 10 SCC 763, the Hon'ble Supreme Court held that merely because the notice contained some amount towards interest and cost separately in addition to the amount of the bounced cheque, the notice does not become invalid.
14. In the case of Central Bank of India vs Saxons Farms, (1999) 8 SCC 221, the Hon'ble Supreme Court held that the CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 7 of 9 Pages (8) object of notice is to give a chance to the drawer of a cheque to rectify his omission and also to protect the honest drawer.
15. In the case of German Remedies Limited vs Harish C. Duggal Agencies, (1996) 64 DLT 163, the Hon'ble Delhi High Court while analysing the statutory notices under Sec. 138 Negotiable Instruments Act held that what is to be seen is substance, namely contents of the notice and not the wordings thereof.
16. As mentioned above, in the present case the statutory notices in paragraph 4 of each of those notices specifically informed the present revisionists complete particulars of the cheques drawn by them in favour of the present respondent which got bounced and even in the operative parts of the notices, the demand made was of the dishonoured cheque amount.
17. In view of above discussion, although the second last paragraph of the impugned order whereby the learned Magistrate allowed rectification of the error in the notice fails to stand, but the rest of the impugned order does not suffer any infirmity. Reading the impugned order in its entirety, it cannot be disputed that the learned Magistrate took an independent view to the effect that CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 8 of 9 Pages (9) despite wrong mentioning of the amount in the operative part of the notices, there was no case of discharge. However, in order to buttress the above view, the learned Magistrate also allowed the application of the present respondent to rectify the clerical error in the notices. Even if the second last paragraph of the impugned order is ignored, the view taken by the learned Magistrate is neither incorrect nor improper nor illegal.
18. In view of above discussion, the impugned orders are upheld. The revision petitions are found meritless and the same are dismissed.
19. Of course, as submitted by learned counsel for revisionists, the above observations to the extent of possibility of bonafide error are not final observations and are subject to fulldress trial.
20. Copy of this order be sent to the learned Magistrate alongwith trial court record and revision files be consigned to records.
(GIRISH KATHPALIA)
ADDITIONAL SESSIONS JUDGE05
SOUTH EAST, SAKET COURTS
NEW DELHI
ANNOUNCED IN THE OPEN COURT cr
ON 25.09.2014
CR No. 52,53,54 & 55 of 2014 Marco Shoes vs I.A.Trade Links Page 9 of 9 Pages