Delhi District Court
Karan Tomar vs Rajiv Kr. Saxena on 1 April, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL SESSIONS
JUDGE5, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
REVISION PETITION NO. 355 of 2017
IN THE MATTER OF:
Karan Tomar,
218 SFS DDA Flats,
Vasant Enclave, New Delhi57 .......Revisionist
Versus
Rajiv Kr. Saxena,
I1744, First Floor,
C R Park, New Delhi19 ........Respondent
Instituted on : 08.08.2017
Reserved on : 31.03.2021
Pronounced on : 01.04.2021
And In
REVISION PETITION NO.365 of 2017
IN THE MATTER OF:
Kusum Tanwar,
218 SFS DDA Flats,
Vasant Enclave, New Delhi57 .......Revisionist
Versus
Rajiv Kr. Saxena,
I1744, First Floor,
C R Park, New Delhi19 ........Respondent
Instituted on : 10.08.2017
Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena
Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena
Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 1 of 16
Reserved on : 31.03.2021
Pronounced on : 01.04.2021
And In
REVISION PETITION NO. 366 of 2017
IN THE MATTER OF:
M/s H. G. Retail Solution Pvt Ltd,
218 SFS DDA Flats,
Vasant Enclave, New Delhi57 .......Revisionist
Versus
Rajiv Kr. Saxena,
I1744, First Floor,
C R Park, New Delhi19 ........Respondent
Instituted on : 10.08.2017
Reserved on : 31.03.2021
Pronounced on : 01.04.2021
JUDGMENT
1. Vide this common judgment, I shall dispose of three separate revision petitions filed on behalf of revisionists assailing the order dated 23.02.2015 whereby they were summoned to face trial under section 138 of Negotiable Instruments Act (hereinafter referred to as 'NI Act') in case bearing CC No. 612890 of 2016 titled as Rajiv Kumar Saxena Vs Karan Tomar & Ors by Ld. MM (NI Act), Patiala House Court, New Delhi. For the sake of convenience, revisionists/accused persons namely Karan Tomar, Kusum Tanwar and Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 2 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:56:59 +0530 M/s H G Retail Solution Pvt Ltd are hereinafter referred to as revisionist no.1, 2 & 3 respectively.
2. Petition is accompanied with an application seeking condonation of delay in filing of instant petitions. During course of arguments, Ld counsel for respondent has submitted that he has no objection if the delay in filing the instant petitions, is condoned by this Court and the matter is decided on merit.
3. In these circumstances and in the interest of justice, the delay in filing the instant revision petitions stands condoned.
4. Brief facts may be taken note of : A criminal complaint titled as Rajiv Kumar Saxena Vs Karan Tomar & Ors was filed by the respondent with the averments that revisionist no.1 & 2 are the Directors of revisionist no.3 i.e. H G Retail Solution Private Ltd, the company registered under Company Act. It is averred that both the Directors are responsible for day to day affairs of the revisionist no.3/company jointly and severally and as per Board Resolution dated 10.06.2014, revisionist Karan Tomar has been authorized to take loan from respondent. It is further averred that revisionist no.1 & 2 being close friends of respondent, approached him with certified true copy of resolution for taking friendly loan and accordingly, a sum of Rs.40 lacs was released through RTGS by respondent and loan agreement dated 17.06.2014 and amended agreement dated 18.06.2014 were signed between the parties. The loan was taken on interest and it was agreed that interest @ 5% per month shall be paid. It is further averred that Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 3 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:57:07 +0530 revisionist no.1 issued two Post dated cheques bearing no.002572 dated 18.07.2014 for an amount of Rs.40 lacs of HDFC Bank and cheque bearing no.160025 dated 18.06.2014 for an amount of Rs.2,50,000/ of Indian Overseas Bank, in discharge of their legal liability.
5. The criminal complaint case bearing CC No.612890 of 2016 is with respect to dishonour of cheque no. 002572 dated 18.07.2014 for an amount of Rs.40,00,000/. As per respondent, despite service of legal demand notice, payment was not made by the revisionists and accordingly, complaint under section 138 NI Act was filed against all the revisionists.
6. Vide order dated 23.02.2015, all the revisionists were summoned to face trial for offences under section 138 of NI Act by Ld Magistrate. The revisionists are aggrieved with the said summoning order and have assailed the same on various the grounds which can be summarized as under :
i) That Ld Trial Court failed to take into consideration that revisionist Karan Tomar is not the signatory of the cheque and he is merely the Director of the company /revisionist no.3;
ii) That summoning order is bad in law for nonaverment of section 141 of the Act;
iii) That no notice was sent to the company/revisionist no.3;
iv) That the amount mentioned in the legal notice is not covered by cheque amount and thus, statutory requirement of section 138 (B) of the Act is not fulfilled;
Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena
Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena
Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 4 of 16
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.04.01
14:57:16 +0530
iv) That the complaint of the respondent is barred by limitation.
7. Ld counsel for revisionist has argued on the line of grounds taken in the instant petitions. He has relied upon following judgments :
a) N Harihara Krishnan Vs J Thomas, Crl Appeal No.1534/2017
b) Himanshu Vs B. Shivamurthu & Anr, Crl Appeal No.1465/2009
c) Suman Sethi Vs Ajay K. 2000(1) ACR 466 CRPC
d) Yankay Drugs and Pharmaceuticals Ltd, Hyderabad Vs Citi Bank, Madras & Anr, Crl P Nos.214 and 215 of 2001 decided on 10.04.2001;
e) Saifuddin Mondal Vs State of West Bengal, CRR No. 2718 of 2007 decided on 09.11.2011;
f) K R Indira Vs Dr G Adinarayana, Appeal (Crl) 1136 of 2003 dated 09.10.2003;
g) Garhwal Mandal Vikas Nigam Ltd & Ors Vs Mata Garg and Co. Chartered Accountants, Crl Misc App (C482) No. 20 of 2004 decided on 08.06.2010;
h) Anneta Hada Vs Godfather Travels and Tours Pvt Ltd, Avnish Bajaj Vs State, Ebay India Pvt Ltd Vs State & Anr, Crl Appeal Nos. 838 of 2008, 1483 and 1484 of 2009 decided on 27.04.2012;
8. Per contra, Ld counsel for respondent has submitted that there is no infirmity in the impugned order and present petitions are liable to be dismissed being devoid of any merit. It is argued that though a common demand notice was served upon revisionist, however, in the said notice, the factum of cheque in question (cheque no. 002572 dated 18.07.2014 for an amount of Rs.40 lakhs) has been clearly mentioned at para 4 and at para 11 demand for payment of Rs.40 lacs against dishonour of said cheque have also been made. It is argued that contention of revisionists that since the demand notice was not sent to the Company and hence the complaint is not maintainable, is fallacious as Hon'ble Supreme Court and Hon'ble High Court of Delhi Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 5 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:57:24 +0530 in various pronouncements have held that service of notice on the Director of Company is a sufficient compliance of Company being put to notice. In support of his averments, Ld counsel for respondent has relied upon following judgments :
a) Suman Sethi Vs Ajay K Churiwal (2000) 2 SCC 380;
b) Rajneesh Aggarwal Vs Amit J Bhalla, (2001) 1 SC;
c) DSC Ltd Vs Dada Jeetu Buildcon Pvt Ltd, 2018 SCC OnLine Delhi 12383
9. I have heard rival contentions and perused the record.
10. For appreciating the rival contentions, apt it would be to reproduce statutory provisions of section 138 NI Act which reads as under : "Section 138 in The Negotiable Instruments Act, 1881 138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 6 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:57:33 +0530 cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said 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."
11. Therefore, it is evident that for constituting an offence under section 138 NI Act, after dishonour of cheque, the payee or holder in due course, is required to make a demand for the payment of said amount of money by giving a demand notice in writing within thirty days from receipt of information regarding dishonour from concerned Bank. Thereafter, the drawer is given 15 days to make the payment and on his failure to make the payments, a complaint can be filed within 30 days.
12. In the instant case, a common demand notice dated 01.10.2014 was sent on behalf of respondent with respect to dishonour of both the cheques i.e. the cheque in question and another cheque (of Rs.2.5 lacs which is subject matter of connected case bearing CC No. 633333/2016). The relevant paragraphs of legal demand notice dated 01.10.2014 i.e. para no. 4 & 11 are being reproduced for sake of convenience : "4.That in pursuance of the loan amount received by you and with a view to clear your liabilities towards my client, you had issued cheques, the details for which are as under : Cheque no. Date Amount Drawn on I 002572 18.07.2014 40,00,000/ HDFC Bank II 160025 18.06.2014 2,50,000/ Indian Overseas Bank ...........................
..........................
11. That my client does hereby call upon you to make the payment of the said amount of Rs.40,00,000/ + 5% interest per month liable upto the date of payment along with the incidental charges of Rs.400 Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 7 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:57:51 +0530 incurred on the presentation of your dishonoured cheques on two occasions within "Fifteen days" from the receipt of this notice, failing which, I have definite instructions from my client to take necessary action against you in the competent court of law, including filing of a criminal complaint, and in that even you shall be liable for all consequences resulting thereafter."
13. In my view, arguments of Ld counsel for revisionist does not hold merit as by said demand notice, revisionist was not only put to the notice about the cheque in question being dishonoured, but was also, called upon to make payment against the same. Perusal of demand notice clearly shows at paragraph 11 that respondent has made specific demand for making payment of Rs.40 lacs. Though, respondent has also claimed interest @ 5% per month by way of said notice, however in my considered view merely because some other incidental demands (viz interest) were also made, apart from cheque in question, would not render the notice in question defective. In my considered view, vide said notice, revisionists were put to sufficient notice about cheque in question and respondent called upon revisionists to make payment against said cheque.
14. Reading, the demand notice, in a manner in which the Ld counsel for revisionist wants this court to read, would render the salutary object of serving demand notice as redundant. A meaningful reading of notice in question makes it ample clear that revisionist was put to sufficient notice about the cheque in question being dishonoured and respondent asking them for making payment against same. Reliance placed by Ld counsel for revisionists on various judgments, is misconceived as no preposition of law has been laid down in any of the said judgments that if apart from cheque amount, any other amount is Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 8 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:58:01 +0530 claimed, same would render the demand notice as defective. Rather, it has been observed in case titled as Suman Sethi (Supra) that if the cheque amount is clearly stated and in case the additional demand in the form of incidental charges (which is interest in present case) is severable from the cheque amount, same would be sufficient compliance of the statutory requirements of section 138 NI Act.
15. Further, the contention of Ld counsel for revisionist that the complaint lacks material averments in terms of section 141 NI Act is also taken on record only for rejection. It is clear that the cheque was issued on behalf of company i.e. revisionist no.3 and bears signature of revisionist no.1. Further, there is clear averment by respondent that both the revisionist no.1 & 2 being Directors of revisionist no.3, are responsible for day to day affairs of the revisionist no.3 company jointly and severally. It has further been averred specifically that revisionist no.1 & 2 had approached the respondent for advancement of loan, therefore considering the averment coupled with material available on record i.e. cheque, return memo and demand notice dated 01.10.2014, a prima facie case for summoning of revisionists is made out in the instant case and there is no merit in the contention of revisionist that the complaint lacks averments in respect of liability of revisionist no.1 & 2.
16. It is further contended on behalf of revisionists that the complaint is barred by limitation as one of the demand notice sent to revisionist Karan Tomar vide consignment No.RU802083163IN was deemed to have been delivered on 04.10.2014 (in view of the refusal) Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 9 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:58:08 +0530 and therefore, the limitation in the instant case would start running from 05.10.2014 and therefore the complaints filed on 21.11.2014 are barred by limitation period as provided under NI Act.
16.1 It is argued that the delivery of another notice on 07.10.2014 (vide consignment No.RU802084481IN to revisionist Kusum Tanwar and vide consignment No. RU802083150IN to revisionist Karan Tomar) is of no consequences as the earlier period of delivery (04.10.2014) is to be taken as a date of service for counting the limitation period in the instant case. Reliance is placed upon judgment of Hon'ble High Court in case tilted as Simaranpal Singh Sure Vs State & Ors, Crl M C No. 2536/2020 dated 01.02.2021 and Shir Ashwani Kumar Julka Vs Lt Col. Parthojit Choudhary (Retd.), Crl M C No. 1379/99 dated 15.11.2006.
16.2 Per contra, Ld counsel for respondent has vehemently argued that the notice in the instant case was served on 07.10.2014 to the revisionists and therefore, the complaints are well within time.
17. It is evident from Trial court record that the notices sent vide consignment No.RU802084481IN to revisionist Kusum Tanwar and vide consignment No. RU802083150IN to revisionist Karan Tomar were delivered on 07.10.2014, whereas another notice sent vide consignment No.RU802083163IN to revisionist Karan Tomar has been received back as unserved on 07.10.2014 with report of 'refusal'. Ex Turpi Causa Non Oritur Actio meaning 'No action arises from an immoral cause'. It appears that revisionist Karan Tomar is trying to Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 10 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:58:15 +0530 take advantage of his own wrong by raising this plea.
17.1 Be that as it may, it is not evident from the tracking report whether it was revisionist Karan Tomar or any of his authorized representative who had refused the service so as to term the same as deemed service. In the instant case, the date of service/ nonservice has been disputed by both parties. In my considered view, service or nonserve of notice is a disputed question of fact which can only be looked into during the course of trial only when the parties lead their evidence. Suffice, it would be to say that at the stage of summoning, there cannot be any palpable reasons to disbelieve averments of the complainant / respondent in this regard.
17.2 However, I may hasten to add that the question of limitation being mixed question of facts and law (in the instant case), is being left open and same shall be decided at the conclusion of trial by Ld Magistrate while giving a specific finding in this regard.
18. Since, as per respondent/complainant, the demand notice dated 01.10.2014 was served upon revisionists on 07.10.2014 as per the tracking report Ex.CW1/E, therefore, counting from 8 th October 2014, period of 15 days for making the payment expired on 22.10.2014 and cause of action accrued on 23 rd October 2014. Excluding the first day when the cause of action arises, one month for filing the complaint would expire on 24 November 2014. Reliance is placed upon judgment of Hon'ble Apex Court in case Saketh India Ltd Vs India Securities Ltd, (1999) 3 Supreme Court Case 1, wherein it Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 11 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:58:22 +0530 has been observed as under :
"8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. The period of 15 days in the present case expired on 14.10.1995. So cause of action for filing complaint would arise from 15.10.1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15 th November is within time."
19. The Judgment of Saketh India Ltd (Supra) has been approved by Hon'ble Apex Court in case Econ Antri Limited Vs Rom Industries Ltd & Anr, (2014) 11 Supreme Court Case 769;
"42. Having considered the question of law involved in this case in proper perspective, in the light of relevant judgments, we are of the opinion that Saketh2 lays down the correct proposition of law. We hold that for the purpose of calculating the period of one month, which is prescribed under section 142(b) of the NI Act, the period has to be reckoned by excluding the date on which the cause of action arose. We hold that SIL Import, USA 3 does not lay down the correct law. Needless to say that any decision on this Court which takes a view contrary to the view taken in Saketh2 by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly."
20. Therefore, at this stage, for deciding the present revision petitions, it is held that the complaints of the complainant/respondent are within period of limitation. However, as mentioned above, the final call in this regard shall be taken by Ld Trial Court at the conclusion of trial after the parties are permitted to lead evidence in this regard.
Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.04.01
14:58:30 +0530
21. It was further argued forcefully by Ld counsel for revisionist that since no separate notice was sent to revisionist no.3 M/s H G Retail Solution Pvt Ltd, therefore, prosecution of revisionist no. 1 & 2 for dishonour of a cheque on behalf of revisionist no.3, is bad in law. Reliance is placed upon judgment of Hon'ble Supreme Court in Anita Handa vs. Godfather Travels & Tour Pvt. Ltd. (2012) 5 SCC
661.
22. The said contention of Ld counsel for revisionist also does not disclose good ground to be entertained. Admittedly, in the instant case, the demand notice was sent to revisionist no. 1 & 2, being Directors of revisionist no.3. In my view, the demand notice to a Director who is either signatory or incharge and responsible for conduct of day to day affair of company, is sufficient notice the Company and no separate notice was required to be sent to the Company which is respondent no.3 in the instant case. Reliance is placed upon judgment passed by Hon'ble Apex Court in case M/s Bilakchand Gyanchand Co. Vs A Chinnaswami, AIR 1999 SC 2182, 2000, wherein it has been observed as under: "3.The respondent moved an application before the Magistrate asking him to recall the process.Having failed in this attempt, a petition under Section 482 Cr.P.C. was filed in the High Court. The High Court by the impugned judgment came to the conclusion that notice under Section 138 was sent by the appellant herein to A. Chinnaswami at his office address but this could not mean that the notice was sent to the company itself. On this ground alone, the High Court allowed, the petition and quashed the complaint which was filed.
4. In our opinion, the High Court erred in quashing the Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 13 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:58:41 +0530 complaint. It is evident that proceedings were initiated by the appellant against A. Chinnaswami who happened to be the Managing Director of Shakti Spinners Ltd. The cheques in question which were dishonoured were signed by him. The process was issued by the Judicial Magistrate in his name. We see no infirmity in the notice issued under Section 138 addressed to A. Chinnaswami, who was a signatory of the said cheques. The High Court, in our opinion, clearly fell in error in allowing the petition under Section 482 Cr.P.C. and in quashing the complaint & setting aside the proceedings pending before the Judicial Magistrate."
23. Similar are the observations of Hon'ble Delhi High Court in Sarabjeet Singh vs. State of NCT of Delhi & Ors., Crl. MC No. 2856/2015 decided on 08.10.2018, wherein it was observed as follows: "After the said cheques had been returned unpaid, the complainant had sent a legal notice of demand on 01.11.2007. It does appear that the said notice of demand was addressed to the third respondent. But then, it is also clear that the third respondent was not called upon by the said demand notice to be accountable for any personal liability. Reference was made to the three cheques, which concededly had been issued against the account of the company. The notice thus was addressed to the third respondent in his capacity as the director of the company accused, calling him upon to pay against the cheques which had been returned dishonoured. That the notice of demand was directed against the company is how the said notice of demand was understood not only by the third respondent but also by the second respondent. This is reflected by the fact that the reply dated 19.11.2007 to the demand notice was sent not by the third respondent but for and on behalf of the company i.e. the second accused by its authorized representative."
24. Therefore, in view of settled legal position, notice to Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 14 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:58:50 +0530 revisionist no.1 who was Director and signatory of cheque in question and to revisionist no.2 who was also Director and was incharge and responsible for conduct of day to day affair of revisionist no.3/Company, was sufficient notice to revisionist no.3/company.
25. In my considered view, by said demand notice (addressed to revisionist no.1 &2) revisionist no.3 i.e. company was put to sufficient notice through revisionist no.1 & 2 about the cheque in question being dishonoured and respondent calling upon them to make payment within the stipulated period in terms of said notice. The reliance by Ld. Trial Court upon judgment of Anita Handa vs. Godfather Travels & Tour Pvt. Ltd. (2012) 5 SCC 661 is misplaced as no preposition of law that apart from notice to Director, a separate notice is required to be sent to the company, has been laid down in the instant case.
26. Further, all the other contentions viz revisionist no.1 & 2 not being Director/Signatory relate to disputed questions of facts. The said submissions made by the revisionist's counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore, cannot be persuaded to have a pretrial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 15 of 16 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:59:05 +0530 cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the revisionists at this stage and there are prima facie sufficient grounds for proceeding against them. I do not find any justification to interfere with the impugned order.
27. In my considered view, Ld Magistrate has passed the impugned order after considering the material available on record i.e. cheque, return memo and legal notice. There is a presumption in favour of respondent in terms of provisions of 118 NI Act and Ld Trial Court has rightfully summoned the revisionist no. 1, 2 & 3. None of the judgments, relied upon by Ld counsel for revisionists, come to their aid in the factual matrix of present case.
28. With these observations, present petitions stands dismissed.
29. TCR be sent back to the Ld. Trial court along with copy of this order.
30. Revision files be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.04.01 14:59:28 +0530 Announced in the open (ANUJ AGRAWAL) Court on 01st April 2021 Additional Sessions Judge05, South East, Saket Courts, New Delhi Crl Rev. No. 355 of 2017 Karan Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 365 of 2017 Kusum Tomar Vs Rajiv Kr. Saxena Crl Rev. No. 366 of 2017 M/s H G Retail Solution Pvt Ltd Vs Rajiv Kr. Saxena Page No. 16 of 16