Delhi High Court
Stalion Shox Co. (P.) Ltd. And Others vs Auto Tensions (P.) Ltd. on 19 April, 1993
Equivalent citations: [1994]79COMPCAS808(DELHI), 51(1993)DLT161, 1993(26)DRJ130
JUDGMENT Sat Pal, J.
1. This petition has been filed by the petitioners under section 482 of the Criminal Procedure Code for quashing the proceedings pending in the court of Shri J. P. S. Malik, Metropolitan Magistrate, New Delhi, pursuant to a complaint filed by the respondent wherein it is alleged that the petitioners have committed an offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to "the Act").
2. Briefly stated the facts of the case are that the petitioners in discharge of their debt/liability drew 11 cheques for a total amount of Rs. 6,20,046.69 in favor of the respondent. All these cheques when presented by the respondent during the period of validity of the cheques through its bankers, State Bank of India, Noida, were dishonoured by the bankers of the petitioners. Six of these cheques were returned with the remark "exceeds arrangement" and the remaining five cheques were returned with the remarks "insufficient funds" along with a memo dated July 27, 1991. Thereafter, the respondent by registered A.D. letter, dated August 3, 1991, sent a notice to the petitioners for making payment of the amount of the cheques within fifteen days of the receipt of the notice. Since the petitioners failed to make the payment of the amount demanded within the period stipulated in the notice, the respondent filed a complaint under section 138 of the Act.
3. After a perusal of the complaint and recording of the preliminary evidence, the learned Metropolitan Magistrate vide his order dated February 29, 1992, summoned the petitioners to appear on May 25, 1992, for an offence punishable under section 138 of the Act. On October 31, 1992, notice under section 251 of the Criminal Procedure Code was given to the petitioners and the case was adjourned to December 18, 1992, for the complainant's evidence. Aggrieved by the aforesaid orders, the petitioners have filed the present petition for quashing of the proceedings before the learned Metropolitan Magistrate.
4. Ms. Shefali Khanna, learned counsel for the petitioners, has urged the following contentions :
1. That six cheques out of the total 11 cheques were dishonoured in the first instance on April 10, 1991, and the remaining five cheques were dishonoured in the first instance on April 16, 1991, and the respondent was required to issue a notice under clause (b) of the proviso to section 138 of the Act within fifteen days of the first default and since the respondent failed to do so, its remedy has been lost.
2. Under section 138 of the Act, the punishment prescribed is imprisonment up to one year or fine which may extend to twice the amount of the cheque or with both and twice the amount of one cheque of the lowest amount comes to Rs. 45,175.50 but under section 29 of the Criminal Procedure Code, a First Class Magistrate is empowered to pass a sentence up to a fine not exceeding Rs. 5,000 and as such the learned Metropolitan Magistrate had no jurisdiction to entertain the complaint filed by the respondent.
3. The respondent has filed one complaint pertaining to dishonouring of 11 cheques whereas it was required to file one complaint in respect of each cheque as dishonouring of every cheque constitutes one offence.
5. I have given my thoughtful consideration to the submissions made by learned counsel for the parties. The first contention urged by learned counsel for the petitioners has no force as the Act does not compel the complainant to issue a notice under clause (b) of the proviso to section 138 of the Act within fifteen days of the first default. Subject to the outer limit prescribed, there could be re-presentation of the cheque and the cause of action for the complaint would arise only when pursuant to the dishonouring of the cheques, notice was issued within fifteen days of the dishonouring and there was refusal/failure to pay. Since the re-presentation of the cheques in the present case was within the outer limit prescribed and the notice was issued within fifteen days of the last dishonouring of the cheque, the complaint could not be dismissed on this ground. The view I have taken is supported by a judgment of this court in Madan Mohan v. K. M. Menon [1993] 1 JCC 1; [1994] 79 Comp Case 710.
6. The answer to the second contention raised by learned counsel for the petitioners is found in section 325 of the Criminal Procedure Code. In terms of sub-section (1) of section 325 of the Criminal Procedure Code, whenever a Magistrate is of the opinion that the accused is guilty and that he ought to receive a punishment more severe than such as a Magistrate is empowered to give, he may record his opinion and forward the accused to the Chief Metropolitan Magistrate to whom he is subordinate. In view of this, I find no merit in this contention also.
7. As regards the third contention, learned counsel for the petitioners could not point out any prejudice to be caused to the petitioners by the filing of one complaint in respect of the dishonouring of 11 cheques. The petitioners will, however, be at liberty to raise this point before the learned trial court during the course of trial.
8. In view of the above discussion, I do not find any merit in this petition and accordingly the same is dismissed.