Hora Sales Agencies And Ors. vs Quest Components (P) Ltd.
2005 Latest Caselaw 1778 Del

ORDER

J.P. Singh, J.

1. This petition under Section 482 of the Code of Criminal Procedure has been filed for quashing complaint No. 58/2001 under Section 138 read with Section 142 of the Negotiable Instruments Act read with Section 420 Indian Penal Code pending in the court of Metropolitan Magistrate Delhi and the notice issued under section 251 of Code of Criminal Procedure, to the petitioner. I have heard Ms. Sonia Arora, learned counsel for the petitioner on the point of admission and have gone through the copies of the documents placed on the file.

2. In the compliant it is alleged that against the loan taken by the petitioner (accused) from the complainant the accused had issued two cheques dated 28.8.2000 for Rs. 1,50,000/- and Rs. 1,25,000/- with the assurance that the same would be honoured on presentation. The petitioner-accused time and again requested the complainant not to present the cheques as he was facing financial difficulties and only on 20.2.2001 agreed that the cheques be presented and assured the complainant that the same shall be encashed but the cheques were dishonoured due to insufficient funds. Intimation was given to the accused and the accused assured to make the payment. Notice was served and then complainant filed the present compliant.

3. It is averred in para-5 of the complaint that the proprietor/Manager of M/s Hora Sales Agencies was the in charge and responsible for the conduct of the business at the time when the offence was committed and therefore they are liable to be punished. Further they have intentionally deceived the complainant. I have also perused the summoning order dated 11.7.2002. The Learned Additional Sessions Judge has mentioned that after perusing the evidence tendered on behalf of the complainant-company and after seeing the judicial file and the bank documents he was satisfied that all the ingredients of section 138 of Negotiable Instruments act existed and therefore he summoned the accused persons under Section 138 of the Negotiable Instruments Act. I have also perused the notice under Section 251 Cr.P.C. given to the accused Smt. Inderjeet Hora, Proprietor of M/s Hora Paints Corporation, Sardar Gurpreet Singh Hora, Authorised signatory of M/s Hora Sales/Paint Agencies and Sardar Gagandeep Hora, Manager of M/s Hora Sales Agencies. There is a clear mention of the ingredients of the provision of Section 138 Negotiable Instruments Act to which the accused persons pleaded not guilty and claimed trial. This notice under Section 251 Cr.P.C. was given on 24.5.2003.

4. Learned counsel for the petitioner has submitted that the cheques were issued by M/s Hora Sales Agencies through its proprietor Gurpreet Singh Hora, which cheques were dishonoured. It seems the petitioners were not responding to the processes issued to them and as mentioned in the petition warrants were issued against the petitioners and only then they appeared. It is argued that the proprietary concern has no legal entity and its proprietor is solely responsible for running the business and therefore only the proprietor may be responsible under Section 138 Negotiable Instruments Act and then objections regarding the validity and service of notice have also been raised.

5. At the outset I may say that the petitioner is challenging the summoning order dated 11.7.2002 and then the notice dated 24.3.2003 under Section 251 Cr.P.C. on 7.12.2005, which prima facie is too late in the day. In my view proper averments have been made in the complaint and the learned Additional Sessions Judge has applied his mind while summoning the accused persons and while giving them notice under Section 251 Cr.P.C. and now the petitioners should only face the trial and give their defense, if any (Section 254 read with Section 263 Cr.P.C.).

6. Before parting with this order I may mention that the following amendments were made in the NI Act in the year 2002:

Amendment Act 55 of 2002 - Statement of Objects and Reasons - The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act.

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5. The proposed amendments in the Act are aimed at early disposal of cases relating to dishonour of cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and a cheque in the electronic form as well as exempting an official nominee director from prosecution under the Negotiable Instruments Act, 1881.

The above provisions leave no doubt that as a result of the amendments, the matters under Section 138 are to be tried summarily (Section 143 of Negotiable Instruments Act and Section 262 to 265 Cr.P.C.) and in sub-section 3 of Section 143 of the Act, there is yet another direction that trials shall be concluded as expeditiously as possible and endeavor shall be made to conclude the trial within six months from the date of filing of the complaint. If such petitions are entertained then this court will have to examin the oral as well as documentary evidence which is yet to come on the record of the trial court and has to face the test of cross-examination. This is not envisaged in section 482 of the Cr.P.C., where the scope is limited and the High Court will intervene only when on the face of it there is a gross illegality or manifest injustice.

7. I find no justification for interference in the trial under Section 482 Cr.P.C. The intention of the petitioner is evident that it wants to delay the disposal of the pending complaint and has filed this frivolous and vexatious petition. The same is, therefore, dismissed with Rs. 5,000/- (Rupees Five Thousand Only) as costs, [Mary Angel and Ors. v. State of Tamil Nadu reported in (1999) SCC 209] which be deposited with Delhi High Court Legal Services Committee within two weeks. The trial court is directed to dispose of the matter expeditiously.

8. A copy of this order be sent to Secretary, Delhi High Court Legal Services Committee.

9. Nothing said herein will tantamount to expression of opinion on the merits of the case.