Ascent Constructions Pvt. Ltd. A ... vs Mr. Mohan Bhatt, Prop. Of Ai-Max ...
2007 Latest Caselaw 2456 Del

JUDGMENT

V.B. Gupta, J.

1. The petitioners have filed the present petition under Section 482 CrPC seeking quashing of the proceedings pending in complaint case in the court of Metropolitan Magistrate and also setting aside of the summoning order dated 20.11.2007 passed by the learned Magistrate.

2. The respondent herein filed a complaint under Section 138 of the Negotiable Instruments Act against the present petitioners on the allegations that the petitioners entrusted the respondent work of designing, supply, fabrication etc. at Greater Noida. The respondent completed the said work order to the satisfaction of the petitioners. After completion of the work, respondent submitted final bill against which, the petitioner made part payment. For the balance payment, the respondent served a legal notice and on receipt of the same, the petitioners issued four cheques towards the part payment. On presentation of those cheques by the respondent, one cheque was returned with remarks "Insufficient Funds" while remaining three cheques were returned with remarks "Stop Payment". The respondent, accordingly gave legal demand notice and thereafter filed complaint under Section 138 of Negotiable Instruments Act against the present petitioners.

3. In the present petition, the petitioners have not disputed the fact that the work order was given to the respondent but the final payment was to be released only after having found the work having been done satisfactorily. The work was not done by the respondent as per the terms and conditions laid down in the work order and no payment was due to be released to the respondents rather the respondent has received excess payments. The respondent has left the job in between and the petitioners have pointed out defects in the work carried out by the respondent and requested him to rectify the same, but the respondent did not rectify the same. Instead of completing the work, the respondent send legal notice making exorbitant demand of certain amount of money, which was duly replied by the petitioner.

4. On 13.6.2007, the petitioner No. 2, had to leave for business trip to Singapore and Thailand. On account of any emergency arising in the absence of cheque signing authority, petitioner No. 2 gave certain signed cheques to the concerned project controller to be used to meet emergency expenses. These cheques were un-named and un-dated. The project controller handed over these cheques to the accountant Ms. Renu Gupta for safe custody. Ms. Renu Gupta resigned from the company in the month of September, 2007.

5. On 11.10.2007, during physical reconciliation of cheques issued and encashed, it was noticed that Accountant Ms Renu Gupta was having custody of four blank cheques and these were missing and the same could not be traced. Immediately, a letter was written to the concerned Bank intimating about missing cheques and thereby requesting, the banker to stop payment against the same instruments.

6. On 12.10.2007, during a routine visit of company's accountant, he came to know that these four cheques have reached the hands of the respondent, to whom the petitioner neither owed any amount nor he has given any of the cheques. The respondent might have visited the company's office after 12.6.2007 to have full knowledge about his bill from the concerned accountant Ms. Renu Gupta and stolen away the above cheques from her desk. A police complaint has already been made by the petitioner. Further, the petitioners have already filed a suit for recovery against the respondent, which is pending in the Court of Additional District Judge.

7. In these circumstances, the summoning order passed by the trial court is wholly misconceived and illegal and is liable to be set aside.

8. The present petition has been filed under Section 482 CrPC which reads as under:

482. Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

This provision of law envisages three circumstances under which the inherent jurisdiction may be exercised, namely -

i) to give effect to an order under the code,

ii) to prevent abuse of the process of court, and

iii) to otherwise secure the ends of justice.

9. Further to seek interference under this Section, three conditions are to be fulfillled, namely -

i) the injustice which comes to light should be of a grave and not of a trivial character;

ii) it should be pulpable and clear and not doubtful; and

iii) there exists no other provision of law by which the party aggrieved could have sought relief.

10. Keeping in view these principles in mind, it is to be seen as to whether the present petition under Section 482 CrPC is maintainable or not.

11. As per the petitioners' own case, the cheques were signed by the petitioner, though according to them, the same have been stolen by their accountant Ms. Renu Gupta and a report to that effect has already been lodged with police. It is a matter of evidence to be gone into by the trial court as to whether the cheques have been stolen by the accountant of the petitioners as alleged and whether those cheques were handed over to the respondent by the accountant. All these matters are yet to be gone into by the trial court during the course of evidence and it is the defense of the petitioners, which they have to prove in the court during the course of trial, in accordance with law.

12. It has been laid down by the Apex Court in Pratibha v. Rameshwari Devi and Ors. III (2007) DLT (Crl.) 963, that:

Power under Section 482 Cr.P.C. are to be exercised sparingly and in rarest of rare case. It has been further laid down that for the purpose of finding out commission of cognizable office, High Court is only required to look into allegations made in the complaint or FIR and conclude whether prima facie offence is made out by the complainant in FIR or complaint or not.

13. After going through the copy of complaint under Section 138 of Negotiable Instruments Act placed on record, prima facie an offence under Section 138 of Negotiable Instruments Act is made out against the petitioners and all the pleas which the petitioners have taken in the present petition, can be raised during the course of their defense, before the trial court.

14. Under these circumstances, the present petition is wholly misconceived and is without any legal basis, and therefore, is dismissed with cost of Rs. 5,000/-.

15. The petitioner is directed to deposit a cost of Rs. 5,000/- with the trial court within one month from today failing which, the trial court shall recover the same in accordance with provisions of law.