Delhi District Court
M/S Crazy Fashions Private Limited vs Vigneshwara Developers Pvt. Ltd on 2 February, 2016
IN THE COURT OF SHRI RAMESH KUMAR: ASJ/SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Revision Number : 02/16
Unique ID No. 02406R000043016
M/s Crazy Fashions Private Limited,
Through its Director
Mr. Javed Alam
Having its Registered Office at
170, Ground Floor-I,
Parjapat Nagar, Gautam Nagar,
New Delhi-110049
.......................Petitioner
versus
1. Vigneshwara Developers Pvt. Ltd.
Through its Director
D-16/C, Bhagwani House,
Hauz Khas,
New Delhi-110016
Also At:
Corporate office
Orchid Centre, Ground & Second Floor,
Golf Course Road, Sector-53,
Haryana-122002
2. Mr Sanjay Kumar
Director
Vigneshwara Developers Pvt. Ltd.
T-31, Medha Apartments Phase-I,
Mayur Vihar, Delhi-110091
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3. Mr Sunil Kumar
Director
Vigneshwara Developers Pvt Ltd
T-31, Medha Apartments Phase-I,
Mayur Vihar,
Delhi-110091
4 Mr Daryao Singh
Director
Vigneshwara Developers Pvt Ltd
T-31, Medha Apartments Phase-I,
Mayur Vihar,
Delhi-110091
5 Mr. Surjeet Singh
Director
Vigneshwara Developers Pvt Ltd
H. No. 682, Village Khidwali,
P. B. Sadar,
Rohtak-124312, Haryana
...........Respondents
Date of institution of Revision : 02/01/2016
Date of Allocation : 04/01/2016
Date of conclusion of arguments : 01/02/2016
Date of Judgment : 02/02/2016
Particulars related to impugned order:
C.C No. : 2935/2014
PS : Hauz Khas
Date of impugned order : 26/09/2015
Name of learned Trial Court : Ms Preeti Parewa,
Ld MM-02/South, New Delhi
Memo of Appearance
Sh. Maroof Ahmad learned counsel for Revisionist.
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JUDGMENT
1. The present is a judicial verdict on a revision petition filed against the order, dated 26/09/2015, passed by Ld Trial Court.
2 Present revision has been filed by the revisionist, namely, M/s Crazy Fashions Private Limited through its Director Mr Javed Alam, against the order, dated 26/09/2015, vide which Ld Trial Court had discharged accused Sunil Kumar and Daryo Singh from the case.
3 Trial court record has been summoned and perused.
4 Brief facts of the case are that revisionist M/s Crazy Fashions Pvt Ltd through its Director Javed Alamd had filed a complaint under Section 138/141 of N.I. Act to the effect that one of the sister concern of the accused persons, namely, M/s Crimson Technomark Private Limited, through its authorized signatory, Sh Dinesh Kumar entered into an agreement to sell dated 30/04/2012 with the complainant company through one of its directors and authroized signatory Sh Javed Alam in respect of the property of the complainant company situated at IT Office Space Unit No. 410 to 416 Tower-A, measuring area 6495 sq ft in total in Spazetech Park at Sector-47, Gurgaon Haryana for a total sale consideration amount of Rs. 3,68,02,000/-. On the same date i.e. on 30/04/2012, an MOU was also executed between accused no.1 company and the complainant company, which was also signed by Sh Dinesh Kumar and Sh Javed Alam and in which it has been agreed that accused no.1 company had agreed to sell, transfer, convey, grant assign and assure its estate right, interest, title, in and all benefits in and to dispose of the property i.e. Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 3 of 14 total area of 8736 sq.ft in D & K I Valley Manesar at 4 th floor in Tower Venus, unit No. 404A admeasuring 3272 sq. ft unit no. 405B admeasuring 814 Sq.ft and Unit No. 406 admeasuring 4650 sq. ft in Sector-8, IMT Manesar, Gurgaon, Haryana, for a sale consideration amount of Rs. 3,68,02,000 and complainant company had agreed to purchase the said property and it was further agreed in the said MOU dated 30/04/2012 that the accused no.1 had agreed to pay month assured return of Rs. 4,54,650/- from the date of submission of transfer papers to SPAZETECH in the name of M/s Crimson Technopark Private Limited upto the date of handing over the of the physical possession of the property. Thereafter, another Developer Anchor Option Agreement-Assured Return Plan dated 01/05/2012 was also executed between accused no.1, which was signed by the complainant company. That in addition, an Addendum dated 01.05.2012 was further executed between the accused no.1 company through its authorized signatory Sh Sunil Kr Dahiya and the complainant company through its AR and one of the Directors Sh Javed Alam and by virtue of clause 9 and 15 of the said Addendum, accused undertook to give a sum of Rs. 4,54,650/- per month, as assured return to the complainant company. Accordingly, accused persons issued certain post dated cheques in favour of the complainant company, out of which some of the cheques had already been got encashed by the complainant company in its favour. It has further been alleged that cheque bearing no. 015137 dated 10.09.2015 for a sum of Rs. 4,09,159 drawn on Citibank N.A. Delhi, was got dishonoured with the remarks "Payment Stopped by Attachment Order" vide Return Memo Report dated 29.09.2014. Thereafter, legal notice was sent to the accused persons at their addresses.
Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 4 of 145 On receipt of the complaint case, Ld Trial took cognizance of offence punishable u/s 138 N.I. Act and affidavit was filed in pre summoning evidence and it was tendered and documents were also exhibited. Thereafter, pre summoning was closed and matter was put up for arguments on summoning and, after hearing the arguments, Ld Trial Court observed that there were sufficient ground to summon accused no. 1, 3 and 4 and no case is made out against accused no. 2 and 5. Later on, on seeking their appearance, accused no. 3 and 4 were admitted to bail. During trial, accused persons moved an application for seeking their discharge in the present case. After hearing arguments, on the said application, Ld Trial Court vide its order dated 26/09/2015, discharged accused Sunil Kumar and Daryao Singh.
6. Aggrieved from the said order, revisionist has preferred this revision. It is contended by Ld counsel for revisionist that order, dated 26/09/2015, has been passed by ld Trial Court without any application of judicial mind and it is against the fact and law and is based on conjectures and surmises and is not sustainable in the eyes of law. It has further been contended that Ld Trial Court has failed to appreciate the material, evidence and the facts of the case while passing the impugned order, dated 26/09/2015. It has further been contended that the observations made by Ld Trial Court in the impugned order are erroneous and are against the facts of the case. It has further been contended that Ld Trial Court has failed to appreciate that the petitioner has fulfilled all the ingredients of the provision of Section 138 N.I. Act while filing the complaint u/s 138 N.I.Act against the accused persons. It has further been contended that Ld Trial Court did not grant an opportunity to the complainant to lead the evidence Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 5 of 14 and discharged accused Sunil Kumar and Daryao Singh and the reasons given in the said order while discharging both the accused persons are erroneous and not sustainable in the eyes of law. It has further been contended that Ld Trial Court has failed to appreciate that the reasoning of the bouncing of the cheque on the ground of "Payment stopped by attachment order" can only be ascertained after leading evidence and ld Trial Court had failed to appreciate that such questions cannot be decided at the initial stage since the same involved both mixed question of law and facts and the same can only be ascertained/decided after full-fledged trial by leading evidence. It has further been contended that it is settled principle of law that, at the stage of charge/discharge, the law does not permit a mini trial and as such the impugned order, dated 26/09/2015, be set aside.
7 I have given my thoughtful consideration to the aforesaid contentions and heard the arguments and carefully perused the entire trial court record.
8. In the present matter, account of the accused had been attached. After attachment, accused could not have operated the said account and there is nothing on record to show that the cheques in question were returned by the bank due to insufficiency of funds as required u/s 138 Negotiable Instrument Act. In view of these facts, there is nothing on the record file to show that the ingredients of Section 138 are complete in the present case.
9. Ld Trial Court had observed in its order, dated 26/09/2015, that " Perusal of the complaint shows that allegedly the cheque in question were issued by the accused persons as PDCs against Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 6 of 14 liability arising from DEVELOPER ANCHOR OPTION AGREEMENT- ASSURED RETURN PLAN dated 01/05/2012 and the addendum VDPL/CRM/ADDM/12/751 dated 01/05/2015. It is submitted by the accused persons that the account of the drawer/accused persons were directed to be attached pursuant to registration of FIR no. 215/14, PS Sushant Lok u/s 420/406 of IPC on 20/05/2015."
10 In Dashrath Rupsingh Rathod Vs State of Maharashtra and Another in Crl. Appeal No. 2287/09 decided on 01/08/2014, Hon'ble Justice P S Thakur has observed that :
"10. Section 138 is a penal provision that prescribes imprisonment upto two years and fine upto twice the cheque amount. It must, therefore, be interpreted strictly, for it is one of the accepted rules of interpretation that in a penal statute, the courts would hesitate to ascribe a meaning, broader than what the phrase would ordinarily bear. Section 138 is in two parts, the enacting pat of the provision makes it abundantly clear that what constitutes an offence punishable with imprisonment and/or find is the dishonour of a cheque for insufficiency of funds etc in the account maintained by the drawer with a bank for discharge of a debt or other liability whether in full or part. The language used in the provision is unambiguous and the ingredients of the offence clearly discernible viz:
(a) Cheque is drawn by the accused on an account maintained by him with a banker.
(b) The cheque amount is in discharge of a debt or a liability and Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 7 of 14
(c) The cheque is returned unpaid for insufficiency of funds or that the amount exceeds the arrangement made with the bank.
But for the proviso that comprises the second part of the provision, any dishonour falling within the four corners of the enacting provisions would be punishable without much ado.
The proviso, however, draws an exception to the generality of the enacting part of the provision, by stipulating two steps and ought to be taken by the complainant holder of the cheque before the failure of the drawer gives to the former, the cause of action to file a complaint and the competent court to take cognizance of the offence. These steps are distinct from the ingredients of the offence which the enacting provision creates and makes punishable. It follows that an offence within the contemplation of Section 138 is complete with the dishonour of the cheque but taking cognizance of the same by any court is forbidden so long as the complainant does not have the case of action to file a complaint in terms of clause (c) of the proviso read with section 142 which runs as under"
"Section 142:
Cognizance of offences .- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) no court shall take cognizance of any offence Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 8 of 14 punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque:
(b) such complaint is made within one month of the date on which the case of action arises under clause .
(c) of the proviso to section 138: (provided that the cognizance of a complaint may be taken by the Court after the prescribed period. If the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.)
(d) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
11. The following would constitute "cause of action' referred to in sub clause (b) above:
(a) The complaint has presented the cheque for payment within the period of six months from the date of the issue thereof.
(b) The complainant has demanded the payment of the cheque amount from the drawer by issuing a written notice within thirty days of receipt of information by him from the bank regarding the dishonour.
(c) The drawer has failed to pay the cheque amount within fifteen days of the receipt of the notice.
12. A proper understanding of the scheme underlying the provision would thus make it abundantly clear that while the offence is complete upon dishonour, prosecution Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 9 of 14 for such offence is deferred till the time the cause of action for such prosecution accrues to the complainant. The proviso in that sense, simply postpones the actual prosecution of the offender till such time he fails to pay the amount within the statutory period prescribed for such payment. There is, in our opinion, a plausible reason why this was done. The parliament in its wisdom considered it just and proper to give to the drawer of a dishonoured cheque an opportunity to pay up the amount, before permitting his prosecution no matter the offence is complete, the moment the cheque was dishonoured. The law has to that extent granted a concession and prescribed a scheme under which dishonour need not necessarily lead to penal consequence it the drawer makes amends by making payment within the time stipulated once the dishonour is notified to him. Payment of the cheque amount within the stipulated period will in such cases diffuse the element of criminality that Section 138 attributes to dishonour by way of legal fiction implicit in the use of the words "shall be deemed to have committed an offence". The drawer would by such payment stand absolved by the penal consequences of dishonour. This scheme may be unique to Section 138 N.I. Act, but there is hardly any doubt that the Parliament is competent to legislate so to provide for situations where a cheuque is dishonoured even without any criminal intention on the part of the drawer.
13. The scheme of Section 138 thus not only saves Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 10 of 14 the honest drawer but gives a chance to even the dishonest ones to make amends and escape prosecution. Compliance with the provision is, in that view, a mandatory requirement. (See C.C. Alavi Haji V. Palapetty Muhammed and Another (2007) 6 SCC 555)
11. Ld Trial Court has further observed in its order that, "Further the facts of the present case are squarely covered by the judgment of Hon'ble Delhi High Court in Vijay Choduhary Vs Gyan Chand Jain (104)DRJ 349, as in the present case also, the accused persons could not have, even if the accused persons would have so desired, either deposited funds in his account or otherwise made arrangements for the payment of cheque upon its presentation by entering into an agreement with the bank, since there was a court attachment of the bank account of the drawer/accused persons cannot be said to be a vouluntary act of the drawer. It cannot be said that the petitioner contrived to have the account attached only for the purpose of warding of the penal consequences U/S 138 NI Act. Also further, it cannot be said that the accused persons were in a position to operate the said account by either depositing monies therein or by withdrawing money therefrom and it also cannot be said that the accused persons were in a position to give effective instructions to its banker with whom the account is maintained."
12 Ld Trial Court had also relied upon the judgment Onkar Nath Goenka Vs Gujarat Lease Finance Ltd. DCR-2010-I-328, and had observed that there was a stay against the sale of assets of accused no.1 company by the various Honourable Courts and thus, the dishonour of the cheque in question was held to be for reasons Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 11 of 14 beyond the control of the accused persons and hence, Section 138 N.I. Act was held to be not attracted.
13 Ld Trial Court had also relied upon Kusum Ignots & Alloys Ltd Vs Pennar Peterson Securities Ltd & others (2000) 2 SCC 745, the Hon'ble Apex Court has held that the proceedings U/S 138 r/w 142 of the Act would not lie where, before the date on which the cheque was drawn or before the expiry of the statutory period of 15 days after notice, a restrained order of BIFR u/s 22 of the SICA was passed against the company. It has been held that in such a case, it may reasonably be said that the dishonouring of the cheque by the bank and failure to make payment of the amount by the company and/or its Directors is for reasons beyond the control of the accused.
14 Section 138 of Negotiable Instrument Act is reproduced herein below for ready reference:-
138. Dishonor of cheque for insufficiency , etc., of funds in the accounts.
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 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 extend to one year, or with fine which may extend to twice Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 12 of 14 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 fifteen days of the receipt of information by him from the bank regarding the return of the 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.
15 In the present matter, after going through the record file , It has transpired that the cheque in question have been issued as post dated cheque. Further, the account of the accused had been attached in FIR No 215/14, PS Sushant Lok U/s 420/406 of IPC on 20/05/2015. There is nothing on record to file to show that the accused could operate his account at the relevant time when the cheque in question were returned unpaid due to the reasons "payment stopped by attachment order". Since, payment was stopped by attachment order, the accused was not in a position to operate the said account. In view of these facts, I am of the considered view that account in question was not capable of being operated by the accused at the relevant time, hence case of the accused does not fall within the purview of the Cr Rev. No. 02/16 M/s Crazy Fashion Vs Vigneshwara Developers Page 13 of 14 section 138 of Negotiable Act.
16 In view of the above discussion, I am of the considered view that Ld Trial Court had rightly relied upon the judgments in its order, dated 26/09/2015 and had taken the correct view of the law and I am of the considered view, that there is no illegality and irregularity in the order passed by Ld Trial Court and, hence, there is no ground to set aside the said order.
17 Revision Petition is, accordingly, dismissed as not maintainable, 18 A copy of this judgment be sent to learned Trial Court along with the trial court record.
19 File related to Revision Petition be consigned to the Record Room.
Announced in the open court ( Ramesh Kumar)
On of 2nd of February, 2016 Special Judge (PC Act)(CBI)
South Distt: Saket Courts:
New Delhi
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