Punjab-Haryana High Court
Reenu Kant And Ors vs Surya Knitwears Ltd on 16 September, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
CRM-M-4248-2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-4248-2011
Date of Decision: 16.09.2014
Smt. Reenu Kant and others
... Petitioner(s)
Versus
Surya Knitwears Ltd.
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed
to see the judgment ? YES
2) To be referred to the Reporters or not ? YES
3) Whether the judgment should be reported in the Digest ? YES
Present: Mr. Puneet Jindal, Sr. Advocate with
Ms. Sakshi, Advocate for the
petitioners.
Mr. Sandeep K. Sharma, Advocate,
for the respondent.
Paramjeet Singh, J.
Instant petition has been filed under Section 482 of the Code of Criminal Procedure for setting aside the order dated 10.1.2011 (Annexure P-6) whereby Judicial Magistrate Ist Class, Ludhiana has failed to dispose of the complaint under Section 138 of the Negotiable Instruments Act (in short 'N.I.Act') filed by the respondent as having been compounded.
Brief facts of the case are that respondent filed a complaint PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -2- CRM-M-4248-2011 under Section 138 of 'N.I.Act' against the petitioners and Sh. Ranbir Singh, Director and Mrs. Geeta Singh, Director. It is averred in the complaint that respondent-complainant had supplied knitted cloths and hosiery items to accused no.1, a private limited company, worth ` 18,88116/-. The said amount is due towards the petitioners-accused inclusive of the amount due from Tripur office. In order to discharge the legal liability, petitioner no.1 issued cheques in favour of respondent- complainant. The details of cheques and amount are as under:
Complaint No. Cheque No. Amount
217/29.08.1998 396084 dt. ` 1 lac out of Account
15.06.1998 No.2751, Canara Bank,
Sewri (West), Mumbai
218/29.08.1998 396254 dt. 17.06.1998 ` 2 lacs 396259 dt. 26.06.1998 ` 1 lac, both out of Account No.2751, Canara Bank, Sewri (West), Mumbai 219/29.08.1998 396255 dt. 19.06.1998 ` 2 lacs 396260 dt. 27.06.1998 ` 1 lac, both out of Account No.2751, Canara Bank, Sewri (West), Mumbai When the cheques were presented by the respondent to its banker-Central Bank of India, Miller Ganj, Ludhiana, these were dishonoured and returned by the banker of the petitioners with memo dated 06.07.1998 with the remarks "Funds Insufficient". The complainant received back the original cheques with the bank memo vide advice note dated 14.07.1998. On receipt of dishonoured cheques, the complainant issued legal notices dated 28.07.1998 which were sent through registered A.D. on 29.07.1998 calling upon the petitioners- PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -3- CRM-M-4248-2011 accused to make the payment of dishonoured cheques within 15 days from the receipt of notices. It is also averred in the complaint that the accused duly received the notice on 03.08.1998 and amount was to be paid within 15 days from the receipt of said notices. It is specifically averred in the complaint that the petitioners-accused sent drafts dated 20.08.1998 amounting to ` 7,00,000/- to the complainant which were received on 24.08.1998 and got encashed. It is also averred that since the accused had not made the payment within 15 days of the receipt of notice, therefore, the petitioners-accused committed an offence under Section 138 of 'N.I.Act'. In pursuance of the complaint, the petitioners- accused were summoned. The petitioners filed CRM-M-13979-M-1999 for quashing the complaint and summoning order, but the same was dismissed on 22.07.1999. Feeling aggrieved by the order dated 22.07.1999, the petitioners filed SLP (Crl.) Nos.2174-2176 of 1999 before the Hon'ble Supreme Court which were dismissed on 16.01.2001 and following order was passed:
"Even though the entire amount covered by the dishonoured cheque had been sent by the accused to the complainant, and that also had been encashed by the complainant yet it cannot be said that no offence under Section 138 had been committed in as much as it is alleged that the accused did not pay within 15 days of the receipt of the notice indicating that the cheques have been dishonoured. There is some assertion that notice had not been received by the accused but that would be a matter for trial. It is also crystal clear that PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -4- CRM-M-4248-2011 in course of trial, the learned trial Judge may take into consideration the fact that the entire amount was paid through a bank draft and complainant has already encashed the same. But it would be difficult for us to quash the complaint on that basis. Needless to mention it would be still open for the parties in the facts and circumstances of the case to enter into a settlement before the learned trying Magistrate.
The Special leave Petitions are dismissed"
It is the case of the petitioners that petitioner no.2 had met with a serious accident and suffered multiple injuries and fractures. He also suffered disability to the extent of 50% and is still under constant treatment of various doctors including Lila Wati Hospital and Research Centre, Bandra (W), Mumbai. Petitioner no.2 is 75 years old. Petitioner no.1 is a lady residing in Mumbai. Exemption from personal appearance to petitioners no.1 and 2 was granted by this Court vide order dated 07.10.2002. In pursuance of the order dated 16.02.2001 passed by the Hon'ble Supreme Court, the petitioners moved application before the trial Court for taking into consideration the fact that entire amount was paid prior to filing of complaints by way of bank drafts which were got encashed by respondent no.1-complainant before filing of complaints under Section 138 of 'N.I.Act'. However, the said prayer of the petitioners has been declined vide impugned order dated 10.1.2011 (Annexure P-6). Hence, this petition.
In pursuance of notice, the respondent put in appearance and filed reply taking plea that earlier, the petitioners had filed petition PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -5- CRM-M-4248-2011 challenging the complaints and summoning orders, but they failed upto the Hon'ble Supreme Court. As such, second petition for setting aside the notices of accusation and discharging the petitioners is not maintainable. Otherwise also, it is pleaded that if the payment is not made within 15 days from the receipt of notice, offence under Section 138 of 'N.I.Act' is made out. The notices were received by the petitioners on 03.08.1998, however, the payment was made vide bank drafts dated 20.08.1998 which were encashed on 24.08.1998. As such, the respondent-complainant is not bound to settle the matter. The application for discharging the petitioners-accused has rightly been dismissed by the trial Court.
I have heard learned counsel for the parties at length and perused the record.
In para no.1 of this petition, details of all the three complaints with cheque number, date, amount etc. have been mentioned and in para no.2, para no.8 of complaint no.218/29.08.1998 has been reproduced which reads as under:
"8. The accused sent a draft of Rs.1,00,000/- dated 20.8.98 to the complainant, which was received by the complainant on 24.8.1998 as such the accused had not made the payment within 15 days of the receipt of this notice and had committed an offence u/s 138 of the Negotiable Instrument Act."
In reply, contents of para 2 of the present petition have not been disputed. Admittedly, in the present case, legal notice dated PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -6- CRM-M-4248-2011 28.07.1998 was sent through registered A.D. on 29.07.1998 which is alleged to have been received by the petitioners on 03.08.1998. But the certificate (Annexure P-2) issued by postal authority shows that legal notices dated 29.07.1998 were delivered to the company on 13.08.1998 and the payment was sent within seven days of receipt of notices by way of drafts dated 20.08.1998 which were got encashed by the complainant on 24.08.1998, meaning thereby entire payment was made within seven days from the date of receipt of notices which were delivered to petitioner no.2 on 13.08.1998. Even if, it is presumed that notices were received by the petitioners on 03.08.1998 and payment was made vide drafts dated 20.08.1998 which were got encashed on 24.08.1998, then liability of the petitioners stood discharged. The provisions of Section 147 of 'N.I.Act' make all the offences under the 'N.I.Act' compoundable and the law laid down by the Hon'ble Supreme Court to the effect that compounding of the offences under the 'N.I.Act' is permissible even after conviction would indicate that the main purpose of the provision of the 'N.I.Act' is to ensure payment of amount of cheque and not the punishment of the accused to satisfy the ego of the complainant. If any monetary loss is caused by delayed payment, the complainant can resort to remedy in civil law. In a situation, where the accused is ready and willing to pay or had paid the amount of the cheque in question before filing of complaint, the insistence of the complainant for an adjudication on merits by refusing to accept the amount, itself, would amount to an abuse of the process of the court.
PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -7- CRM-M-4248-2011 In Suman Sethi vs. Ajay K. Churiwal 2000 (1) R.C.R. (Criminal) 780, the Hon'ble Supreme Court has held as under:
"8. This Court had occasion to deal with Section 138 of the Act in Central Bank of India & another v. M/s. Saxons Farms & Ors., 1999(4) RCR (Crl.) 324: JT 1999(8) SC 58 and held that the object of the notice is to give a chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost etc. is also made drawer will be absolved from his liability under Section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before complaint is filed.
9. In Section 138 legislature clearly stated that for the dishonoured cheque the drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 138 will cease and for recovery of other demands as compensation, costs, interest etc., a civil proceeding will lie. Therefore, if in a notice any other sum is indicated in addition to the "said amount" the notice cannot be faulted, as stated above."
The basic purpose of the legal notice is only to rectify the omissions committed by the accused in regard to making the payment. In the present case, the omission has been rectified prior to filing of complaints and payment stood received by encashing the bank drafts PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -8- CRM-M-4248-2011 issued by the petitioners.
In C.C.Alavi Haji vs. Palapetty Muhammed & Anr. 2007 (2) Apex Court Judgments 526 (S.C.), the Hon'ble Supreme Court has held as under:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act....."
In C.C.Alavi Haji (supra), the Hon'ble Supreme Court has held that even if the payment is made within 15 days from the receipt of summons where drawer claims non-receipt of notice, the same will be considered as a valid payment and the complaint is liable to be rejected. In the present case, the situation is even much better as the payment was PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -9- CRM-M-4248-2011 made even prior to filing of complaint and it was duly received by encashing the demand drafts.
The notice under Section 251 Cr.P.C. has been framed. It is inherent in Section 251 Cr.P.C. that when an accused appears before the trial Court pursuant to summons issued under Section 204 Cr.P.C. in a summons case, it is the bounden duty of the trial Court to satisfy itself whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him. The trial court has to frame notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out. However, in the event of finding that no case is made out against the accused, the trial Court would be well within its rights to drop the proceedings against the accused.
Section 258 Cr.P.C. does not empower the Magistrate to discharge the accused in summons case instituted upon complaints. It is well settled that any order affecting life or liberty has to be passed by following the principles of natural justice. Order of framing notice under Section 251 Cr.P.C. substantially affects the rights of an accused. Remedy of discharging the accused at the stage of notice under Section 251 Cr.P.C. in summons case is not available whereas the said remedy is available in warrant cases as well as summons cases based on police reports. Therefore, the denial of remedy of discharge to the accused in summons cases at the stage of notice under Section 251 Cr.P.C. is clearly discriminatory and arbitrary. The power of trial court to discharge the accused at the stage of notice under Section 251 Cr.P.C. is based not only PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -10- CRM-M-4248-2011 on sound logic but also on a fundamental principle of justice as a person against whom no offence is disclosed cannot be forced to face the trial. Compelling the accused to seek quashing of complaint, at this stage, amounts to shifting of the prosecution case from the trial Court to this Court.
In 'Arvind Kejriwal and others vs. Amit Sibal and another', CRL.M.C.5245/2013 and Crl.M.A.Nos.18920-21/2013, decided on 16.01.2014, it has been held by the Hon'ble Delhi High Court as under:
"Conclusion
20. In view of the authoritative pronouncements of the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra), the accused are entitled to hearing before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -11- CRM-M-4248-2011 keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra).
21. Applying the aforesaid principles to this case, the petitioners are permitted to urge the pleas raised in this petition before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C.
whereupon the learned Metropolitan Magistrate shall consider them and pass a speaking order. The learned Magistrate shall frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the petitioners. The learned Magistrate shall be empowered to discharge/drop the proceedings against the petitioners if no case is made out against them. Needless to say, if the learned Magistrate chooses to frame notice under Section 251 Cr.P.C., the petitioners would be at liberty to avail the remedies as available in law. 22. This petition and the applications are disposed of on the above terms. It is clarified that this Court has not examined the contentions of the parties on merits which shall be considered by the learned Metropolitan Magistrate."
In CRM-M-23421-2008, titled 'Balbir Singh vs. M/s Aggarwal Mfg. Co.', decided on 11.11.2010, the then Hon'ble Mr. Justice Ranjan Gagoi of this Court (now Judge of the Hon'ble Supreme Court) has held as under:
"The provisions of Section 147 of the Act, which makes all the offences under the Act compoundable and the law laid down to the effect that compounding of the offences under the Act would PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -12- CRM-M-4248-2011 be permissible even after conviction would indicate the manner in which the Courts should deal with an offence allegedly committed under the Act. In a situation, where the accused is ready and willing to pay the amount of the cheque in question, the insistence of the complainant for an adjudication on merits by refusing to accept the amount, itself, would amount to an abuse of the process of the Court."
The contention of learned counsel for the respondent that earlier the petitioners had filed petition for quashing of complaints and summoning orders, which stands decided upto to the Hon'ble Supreme Court and on this ground the present petition deserves to be dismissed, is concerned, the same is devoid of merit as impugned notice of accusation and the order on the application of discharge of the petitioners are independent.
This Court while exercising power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice deems it fit and appropriate that this case warrants interference to enable discharge of the accused at the stage of notice under Section 251 Cr.P.C., if no prima facie case is made out.
Keeping in view the totality of the facts and circumstances of the case, this Court is of the considered view that the trial court should have taken into consideration all these facts while serving notice of accusation to the petitioners. Resultantly, instant petition is allowed, complaints no.217, 218 and 219 dated 29.08.1998 pending before the Court of Mr. Yukti Goel, Judicial Magistrate Ist Class, Ludhiana are PARVEEN KUMAR 2014.09.30 11:01 I attest to the accuracy and authenticity of this document -13- CRM-M-4248-2011 dismissed, notices of accusation dated 18.12.2010 served upon the petitioners/accused are set aside, the bonds of petitioners shall stand discharged.
16.09.2014 (Paramjeet Singh)
parveen kumar Judge
PARVEEN KUMAR
2014.09.30 11:01
I attest to the accuracy and
authenticity of this document