Shri Gautam Nimani vs S.N. Surekha & Co.
2002 Latest Caselaw 1325 Del

JUDGMENT

V.S. Aggrwal, J.

1. The present petition is directed against the order passed by the learned Metropolitan Magistrate dismissing the application filed by the petitioner (Gautam Nimani ) for recalling the summoning order dated 3rd December, 1997.

2. Some of the relevant facts are that the respondent had filed a criminal complaint with respect to the offence punishable under Section 138 Negotiable Instruments Act, 1881. It had been asserted by the respondent/complainant that the respondent/complainant M/s S.N. Surekha & Co. is a sole proprietorship concern. The petitioner had purchased shares of Rajasthan Spinning and Weaving Mills. Acting on the representation of the petitioner the complainant had agreed to sell the shares. As per rules of Bombay Stock Exchange, the petitioner was under an obligation to clear all the dues of the respondent within a period of 15 days. The respondent/complainant is entitled to recover the outstanding dues with Interest at 3% per mensum. It is alleged that cheque for Rs. 10 lakh was given by the petitioner which was dishonoured on it being presented. After serving the due notice and there being non payment of the amount the complaint had been filed.

3. The learned Metropolitan Magistrate had recorded the statement of two witnesses and thereupon passed the impugned order summoning the petitioner for the above said offence. The petitioner filed an application for recalling the order so passed and vide the impugned order the learned Metropolitan Magistrate dismissed the said application. Hence the present petition.

4. Learned counsel for the petitioner has raised two pertinent arguments (i) the attorney of the respondent could not have appeared in the preliminary evidence and in any case he is not the present conversant with the facts and consequently his evidence could not be considered and (ii) even as per the assertions and material on the record the impugned cheque was without any liability contemplated under Section 138 of the Negotiable Instruments Act. The two cheques constitute the total payment of interest that had been given. In any case orders passed by the Mumbai Stock Exchange and SEBI on its own complaint is binding.

5. A preliminary objection was raised on behalf of the complainant that once the order summoning the. petitioner had been passed the court had no power to recall the said order.

6. So far as the respondent's contention is concerned reference can well be made to the decision in the case of K.M. Mathew v. State of Kerala and Anr. . It was specifically held that it is open to the accused to plead before the Magistrate that process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which accused could be tried. It appears that the matter has been referred by the Supreme Court in the case of Nilamani Routray v. Bennett Coleman & Co. Ltd. to a larger bench. But as the position stands today the ratio decidendi of the decision in the case of K.M. Mathew (Supra) would bind and in face of the said decision the preliminary objection raised by the respondent for the present must be rejected.

7. Reverting back to the contentions of the petitioner for purposes of the present decision it was not in dispute that on behalf of the respondent his attorney had appeared as CW1. Under Section 200 of the Code of Criminal Procedure a Magistrate taking cognizance of an offence is duty bound to examine on oath the complainant and witness is present. Clause

(a) and (b) of the proviso to Section 200 would not be attracted in the present case. But the expression 'complainant' in the context does not mean the complainant himself. The law does not insist that it has to be the same person. Once he has legally appointed an attorney he is competent to make the statement on behalf of the complainant because he steps into the shows of the complainant. As regards the contention that the attorney is not shown to be conversant with the facts of the case once again the argument is without any basis. The respondent had also examined an assistant from the Corporation Bank. He had brought the necessary record and had proved about the cheque having been presented and it being not honoured because of insufficiency of funds. The other ingredients for purposes of the summoning the petitioner fell from the statement of the attorney and once the ingredients as such were satisfied it is obvious that the attorney of the respondent was competent to depose regarding the relevant facts. Once he has so deposed the argument so much thought of by the learned counsel must fail.

In that event it was contended that the cheque is without consideration and the argument as already referred to above raised was that as per the letters of SEBI the amount claimed could not be a liability contemplated under Section 138 of the Negotiable Instruments Act.

9. In this regard at this stage the reply of the respondent pertaining to this controversy necessarily has to be taken note of. In paragraph 5 of the reply to the application filed by the petitioner for recalling the summoning order it had been pleaded:-

"Contents of para 5 are wrong and denied. It is submitted that there existed a dispute between the parties herein regarding payments which the accused had to pay to the complainant. The accused was bound to pay the complainant a sum of Rs. 1.44 crores on account of sale of shares but, the accused failed to do so within the stipulated time period. Left with no alternative, the complainant lodged a complaint before the SEBI seeking adjudication. It is not denied that SEBI directed the accused vide its letter dated 23rd September, 1996 to pay the complainant its dues. The said letter reads:-

"..... As on date, they have received only 1.412 crores leaving a balance payment of Rs. 2.73 lacks and interest for the delayed period amount to Rs. 17.5 lacs."

It is submitted that the accused issued two cheques amount to Rs.17.5 lacs towards payment of interest as referred to in the above said letter of SEBI. It is wrong and denied that at that point of time, the outstanding was Rs. 2.73 lacs only. In fact, the total amount due at that point of time as referred to by the accused was Rs. 20.23 lacs."

10. Perusal of the aforesaid clearly show that a dispute of fact has been raised as to what amount and how much was due. It is denied by the respondent that at that point of time outstanding amount was Rs. 2.73 lakhs. It is alleged t hat in fact Rs. 20..23 lakhs was due. In face of this controversy at this stage no further opinion need be expressed. It had to be adjudicated and gone into after the evidence is recorded and therefore it, must be held that petition so filed is without merit. Thus at this stage no opinion is expressed regarding the letter of SEBI.

11. FOR these reasons petition fails and is dismissed.