Delhi District Court
M/S Sidh Vinayak Trading Company vs M/S New Delhi Agro Foods Products & Ors on 16 August, 2016
New case no.58299/2016
IN THE COURT OF SPECIAL JUDGE, CBI (P C Act)-06,
CENTRAL DISTRICT, TIS HAZARI, DELHI.
New case no.58299/2016
Criminal Revision No. 59/2016
M/s Sidh Vinayak Trading Company
(through its proprietor Sh. Kaushal Kishore Chaturvedi)
2658/61, Third Floor, Jain Building,
Naya Bazar, Delhi-110006
.....Petitioner
Versus
M/s New Delhi Agro Foods Products & Ors.
(through its proprietor Sh. Kamal Yadav)
313, Gali No.4, Bagh Kare Khan,
Delhi-110007
.....Respondent
Instituted on: 7th June 2016
Argued on : 16th August 2016
Decided on : 16th August 2016
JUDGMENT
This revision petition u/s 397 r/w 401 of the Code of Criminal Procedure is directed against order dated 6 th May 2016 passed by the Court of Ms.Neha Gupta Singh, Learned Metropolitan Magistrate (MM-
03), Central District, Delhi in a complaint case u/s 138 of N.I. Act [CC No. 3628/15, titled as M/s Sidh Vinayak Trading Company vs. M/s New Delhi Agro Food Products] whereby accused (respondent) herein has been discharged.
M/s Sidh Vinayak Trading Company vs M/s New Delhi Agro Food Products 1 of 5 New case no.58299/2016 In brief, facts leading to the filing of this revision petition are that on 26th June 2015, a criminal complaint case u/s 138 Negotiable Instruments Act (herein after referred to as NI Act) was filed by Kaushal Kishore Chaturvedi, Proprietor of M/s Sidh Vinayak Trading Company against M/s New Delhi Agro Food Products, a proprietorship firm of Sh.Kamal Yadav. Petitioner is a grain merchant and commission agent. Petitioner used to supply grains to the respondent and used to raise invoices. Towards part payment in discharge of his liability, a cheque no.514733 dated 25th January 2015 (Ex.CW-1/1) drawn on Punjab National Bank in the sum of Rs.5 lacs was issued by the respondent Kamal Yadav as proprietor of M/s New Delhi Agro Food Products.
Case of the petitioner is that the respondent had requested him to present the cheque in the last week of April 2015 as he was not having sufficient balance in his bank account. Pursuant to the request and instructions of the respondent, petitioner presented the cheque on 24th April 2015, where-upon cheque was returned unpaid dishonoured with remarks "Instrument outdated/Stale" vide return memo dated 25th April 2015 (Ex.CW-1/2). Legal notice dated 23rd May 2015 (Ex.CW-1/3) was issued to the respondent but respondent failed to make payment despite service of the notice.
Ld Magistrate after examining the complainant and recording pre-summoning evidence on 1st August 2015, took cognizance and summoned the respondent and thereafter, on subsequent date i.e. 6th M/s Sidh Vinayak Trading Company vs M/s New Delhi Agro Food Products 2 of 5 New case no.58299/2016 May 2016 discharged the accused (respondent herein) observing that the cheque was valid for three months and offence u/s 138 NI Act was not made out. Aggrieved by said order whereby respondent had been discharged by Ld MM, the complainant (petitioner herein) has preferred revision petition before this court.
Sh. Dilip Gupta, Ld counsel for the petitioner submitted that impugned order is erroneous and was passed without application of mind in a mechanical manner. It is submitted that cheque is dated 25th January, 2015 and thus, three months period would expire on 25 th April 2015. Sh. Vineet Jain, Ld counsel appearing on behalf of respondent submitted that 90 days period would expire on 23rd April 2015. In support, Ld counsel relied upon a case reported as Shri Ishar Alloy Steels Ltd vs Jayaswals Neco Limited1 to show that in the said case cheque dated 21st July 1997 was presented firstly on 26th September 1997 and again on 20th January 1998 and cheque reached the drawer bank it was held that the cheque was not presented before the drawer bank within the then, statutory period of six months.
This court finds that 'Ishar Alloy Steels' case (supra) is not applicable to the factual matrix as in the said case admittedly, the cheque was not presented before the drawer bank within the statutory period of six months and cheque dated 21st July 1998 which was presented on 20th January 1998 had been presented before the drawer bank on 24th January 1998.
1 Crl. Appeal No. 219 of 2001 dated 22 nd February 2001 M/s Sidh Vinayak Trading Company vs M/s New Delhi Agro Food Products 3 of 5 New case no.58299/2016 After hearing submissions advanced and perusal of record, this court find error in the impugned order. Period of presentation of cheque is three months and not 90 days as submitted by ld. counsel. In the present case, cheque was drawn on 25th January 2015 and indisputably, cheque had been presented by the petitioner before Indus Ind Bank on 24th April 2015 from where it was wrongly returned with the reason "instrument outdated/stale" on 25th April 2015. Even if, the date on which cheque was drawn is not excluded, even then the cheque had been presented to the bank within a period of three months. In computation of the period of limitation, the date on which the cause of action arose or the date on which cheque had been drawn has to be excluded while counting the period of limitation. In the present case, the cheque is dated 25th January, 2015 and the said cheque as per the memo Ex.CW-1/2 was presented on 24th April, 2015.
As per section 138, proviso N.I. Act, cheque has to be presented within the period of three months from the date of its drawn and thus, after excluding 25th January, 2015, three months period has to be reckoned, cheque having being presented on 24.04.2015 was well within the stipulated period of three months. In this context, support can be drawn from opinion of the Supreme Court in the cases reported as "Saketh India Ltd. Vs. India Securities Limited 2 and Econ Antri Ltd. Vs. Rom Industries Ltd. & Anr.3" wherein while calculating period of 2 1999 Crl.J 1822 (SC) 3 CRIMINAL APPEAL NO.1079 OF 2006 M/s Sidh Vinayak Trading Company vs M/s New Delhi Agro Food Products 4 of 5 New case no.58299/2016 limitation of 15 days from the date of notice, it was held that the first day was to be excluded.
In the result, the impugned order dated 6 th May 2016 is set aside and recalled. Order accordingly. Revision petition stands allowed. Both the parties are directed to appear before Ld trial court on 29th August 2016 and Ld trial court shall proceed further with the trial, in accordance with law. TCR be sent back along with copy of this order. Revision file be consigned to Record Room.
Announced in the open court on 16th August 2016 VINAY KUMAR KHANNA Special Judge-CBI (PC Act)-06 THC/Delhi/16.08.2016 M/s Sidh Vinayak Trading Company vs M/s New Delhi Agro Food Products 5 of 5