Bharat Heavy Electrical Ltd. & ... vs D. K. Sardana
2009 Latest Caselaw 5319 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl. M.C. No. 782/2008

                                           Reserved on : 12.10.2009

                                     Date of Decision : 21.12.2009

Bharat Heavy Electrical Ltd. & Ors.                ......Petitioners
                          Through:          Mr. Dinesh Mathur, Sr.
                                            Adv. with Mr. A. K. Roy,
                                            Adv. for the petitioners.

                                 Versus

D. K. Sardana                                      ...... Respondent
                                Through:    Mr. S. C. Garg, Adv. for
                                            the respondent.



CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers can be
       allowed to see the judgment?                           YES
2.     To be referred to the Reporter or not ?                YES
3.     Whether the judgment should be reported
       in the Digest ?                                         YES

V.K. SHALI, J.

1. This is a petition filed by the petitioners for quashing of a

complaint no. 1073/2007 titled D. K. Sardana Vs. M/s Bharat

Heavy Electrical Ltd. and the order of summoning dated

30.05.2007.

2. Briefly stated the facts leading to the filing of the present

petition are that respondent/complainant D. K. Sardana filed a

complaint against the petitioner company, BHEL, its Chairman-

cum-Managing Director Mr. Ashok K. Puri, Ms. Ambika Khatua,

Chief Vigilance Officer (since discharged), Sh. S. K. Jain, Director

(HR), Sh. Sanjay Verma, Deputy Manager (Finance) and Smt.

Anupama Parmar, Senior Accounts Officer under Section 138 of

the Negotiable Instrument Act. The complainant alleged that he

was employed as senior accounts officer with M/s BHEL having

its office at Hindustan Time Building, K. G. Marg, New Delhi. It

is alleged that his services were terminated w.e.f. 11.11.2000

illegally. The present petitioners who are the accused in the

complaint, called the respondent/complainant for the purpose of

settlement of his account and issued him a cheque bearing no.

568832 drawn on ABN Amro Bank, Hansalaya, Building, 15

Barakhamba Raod, New Delhi for a sum of Rs.58,536/- towards

the full and final settlement of his entire claim. The aforesaid

cheque is alleged to have been signed by Sh. Sanjay Verma,

Deputy Manager (Finance) and Smt. Anupama Parmar, Sr.

Accounts Officer. It is alleged that on presentation, the cheque

was not honoured and he received intimation from the banker

HDFC that the payment of the aforesaid cheque was stopped by

the petitioners. It is further alleged that the

respondent/complainant had approached the two signatories of

the cheque who demanded an illegal gratification of Rs.5,000/-

for getting the cheque honoured. The petitioners no. 1 to 4 are

alleged to be accountable for Administration and Vigilance

Department for BHEL, and as they had failed to make the

payment despite a legal notice dated 17th March, 2007 having

been served on them consequently the complainant was

constrained to file the present complaint under Section 138 of

the Negotiable Instruments Act. It is alleged that the aforesaid

amount of Rs.58,536/- was payable to the

respondent/complainant on account of terminal benefits like

subsidized medical facilities, leave encashment, house rent

allowance without ceiling in revised pay, city compensatory

allowance, plant performance, profit sharing bonus/ex-gratia

and education assistance, etc.

3. The learned Magistrate after taking the evidence by way of

an affidavit of the respondent/complainant summoned the

petitioners for an offence under Section 138 of the Negotiable

Instruments Act. The exact language of order of summoning is

as under:

"C.C. No. 1073/2007

30.05.2007

PRESENT: Complainant in person.

I have already heard arguments on the point of summoning and perused the records carefully.

It is mentioned in the complaint that accused no. 1 to 4 are accountable being the Administrative and Vigilance Head in the Department and are looking after the affairs of M/s Bharat Heavy Electricals Limited. The cheque has been issued by BHEL. Under these circumstances, therefore, the court is convinced that accused no. 1 should be summoned through the accused no.2. As per the reply dated 30.03.2007 of accused no. 1, 2 and 3, it was accused Sanjay Verma and Smt. Anupama Parmar, who were in knowledge and control over the affairs of the company as per delegation of power of the company. Accused no. 4 has been mentioned as Director of accused no.1. However, the Court is not concerned

how the Chief Vigilance Officer Smt. Ambika Khatua is liable for the offence under Section 138 N.I. Act. In the facts and circumstances of the case, there is sufficient material on record to summon the accused no. 1, 2, 3, 5 and 6 under Section 138 N.I. Act.

Issue summons against these accused persons on filing of PF/RC, AD and by duly authorized courier service to be filed within 20 days for 8.8.2007. Dasti be given, if desired. If the accused is resident of a place situated outside Delhi, the summons be served through the concerned Ld. CJM."

4. The petitioners feeling aggrieved by the aforesaid order of

summoning challenged the same by filing the present petition.

5. The learned senior counsel for the petitioners have made

the following submissions for the purpose of praying for

quashing of complaint and the summoning order.

a) The first submission of the learned Senior Counsel for the

petitioners is that the notice dated 17th March, 2007 which is

purported to have been sent by the respondent/complainant is

not actually issued to the petitioner no.1/BHEL and

consequently the requirement of Section 138 of the Negotiable

Instruments Act could not deemed to have been satisfied. The

learned senior counsel for the petitioners has drawn the Court's

attention to the notice dated 17th March, 2007 which is issued by

the respondent/complainant only to Sh. Ashok K. Puri, Smt.

Ambika Khatua, Sh. S. K. Jain, Sh. Sanjay Verma, and Smt.

Anupama Parmar. The contention of the learned senior counsel

for the petitioners is that essentially the grievance of the

respondent/complainant is against the petitioner/company

which is a juristic person, therefore, the notice under Section

138 of the Negotiable Instruments Act ought to have been sent to

the company and only then the offence under Section 138 of the

Negotiable Instruments Act qua the authorized signatories or the

Director by virtue of invocation of Section 141 of the Negotiable

Instruments Act could be made out.

b) The second submission made by the learned senior counsel

for the petitioners is that the petitioners Sh. S. K. Jain and Sh.

Ashok K. Puri or for that matter the other petitioners who are

impleaded as parties to the complaint are working in their official

capacities. There is not even a single averment in the complaint

that anyone of them was in-charge and responsible for the

conduct of day to day business of the company, therefore, the

essential requirement of Section 141 of the Negotiable

Instruments Act is not satisfied and consequently the complaint

against Sh. Ashok K Puri, Managing Director-cum-Chairman,

and Sh. S. K. Jain, Director (HR) is unsustainable. So far as Mr.

Sanjay Verma and Smt. Anupama Parmar are concerned, it is

not stated that in what capacity they have been made a party in

the complaint although averment made in the complaint is that

they have signed the cheque.

c) The third submission made by the learned senior counsel

for the petitioners is that the dishonour of the cheque under

Section 138 of the Negotiable Instruments Act in order to become

an offence must be either on account of insufficiency of funds or

exceed the arrangement given in the account on which the

cheque is issued and not for any other reason. Supplementing

this argument further it is contended that the cheque for a sum

of Rs. 58,536/- was issued in favour of the

respondent/complainant, the Accounts Branch had erroneously

calculated the amount of terminal benefits due and payable to

the respondent/complainant and the moment the notice dated

17th March, 2007 was received by the respondent/complainant

they had issued a reply to the petitioner to the said notice and

enclosed therewith a cheque for an amount of Rs.5,951/- which

was actually due and payable on account of terminal benefits to

the respondent/complainant. The respondent/complainant in

his complaint has nowhere stated the factum of an amount of

Rs.5,951/- having been received by him in response to the

notice. On the contrary, it is alleged that the

respondent/complainant has concealed not only the factum of

having received the aforesaid amount but has also not placed on

record before the learned Trial Court the reply sent by petitioners

no. 4 and 5 in response to the notice, where it was clearly denied

by them that any amount is due and payable to the

respondent/complainant other than the one which was paid to

him along with the reply to the said notice.

d) The fourth contention of the learned senior counsel for the

petitioners and which is supplementary to the third contention,

was that the respondent/complainant has been guilty of

concealment of facts in as much as the reply to the notice sent

by the petitioners no. 4 and 5 and the factum of having received

the amount of Rs.5,951/- has not been disclosed by the

respondent/complainant in the complaint. The learned senior

counsel for the petitioners have placed reliance in this regard on

MCD Vs. State of Delhi 2005 SCC (Cri.) 1322.

6. The respondent/complainant has refuted the arguments of

the petitioners and taken the plea that there is a presumption

that the cheque having been issued for a valid discharge of

liability and the plea which has been set up by the petitioners

now is only an afterthought which needs adjudication during the

course of trial and the complaint or the summoning order cannot

be quashed. So far as the question of notice having not been

issued on the company is concerned, it was contended that even

though no notice has been issued to the company since the

notice has been issued to the Chairman-cum-Managing Director

Sh. Ashok K. Puri of the company, therefore, it is deemed to be a

notice issued to the petitioner/company which will satisfy the

requirement of Section 138 of the Negotiable Instruments Act.

Alternatively, it has been contended by the learned counsel for

the respondent/complainant that the Apex Court in case titled

Bimal Kumar Nopani Vs. State of U.P. 2006 (3) JCC NI 257

has held that it is not necessary even to implead the company in

a case under Section 138 of the Negotiable Instrument Act where

the prosecution of the Managing Director or the Director of the

said company is sought by a complainant.

7. I have carefully considered the respective submission of the

learned counsel for the parties and have also perused the record.

8. At the outset, it must be submitted that a person who is

invoking the jurisdiction of the Court whether civil or criminal

must come to the temple of justice with clean hands. In the civil

cases, the Hon'ble Supreme Court on case titled Chengalvaraya

Naidu (dead) by LR's Vs. Jagannath (dead) by LR's & Ors.

AIR 1994 SC 853 has categorically laid that fraud or concealment

of facts by a party at whatever stage it is detected will vitiate the

entire proceedings. Similarly, on the criminal side also in case

titled MCD Vs. State of Delhi & Anr. 2005 SCC (Crl.) 1322 while

dealing with the question of release of an accused under Section

4 of the Probation of Offender's Act, 1960 the Apex Court has

held that a litigant who comes to the Court and withholds a vital

document or suppresses the material facts in order to get an

advantage in the case can be summarily thrown out at any stage.

It was in this background that the Apex Court observed that

anybody who plays fraud on the Court can be summarily thrown

out and would not be granted any relief.

9. The principle of law which has been laid down by Apex

Court in case titled MCD Vs. State of Delhi & Anr. is aptly

applicable to the facts of the present case because the complaint

deserves to be quashed on this short ground itself. The

respondent/complainant was admittedly employed as a senior

accounts officer with the petitioner no.1/company and had been

dismissed from the service on account of abandonment of his

employment. The respondent/complainant was issued a cheque

for a sum of Rs.58,536/- towards his settlement of terminal

benefits but later on it was found that the amount was actually

Rs.5,951/-. The employees of the petitioner/company

accordingly issued instructions to the banker to stop the

payment and the moment the respondent/complainant issued a

notice under Section 138 of the Negotiable Instruments Act on

17th March, 2007 intimating the drawer of the cheque that the

same has been dishonoured, they issued him a fresh cheque for

a sum of Rs.5,951/- and the signatories to the cheque i.e.

petitioners no. 4 and 5 who had signed cheque of Rs.58,536/- on

behalf of the company also sent an individual reply to the

respondent/complainant intimating him that the earlier cheque

was issued to him erroneously under a mistaken belief that such

a huge amount was due and payable, but the moment it came to

their notice that the amount actually admissible to the

respondent/complainant was only a sum of Rs.5,951/-, the

cheque for the said amount was dispatched to him. Therefore,

the actual amount which was due and payable to the

respondent/complainant was actually paid. The

respondent/complainant after having received the aforesaid

amount has chosen to file the complaint under Section 138 of

the Negotiable Instruments Act by concealing these facts only to

gain unfair advantage of getting the petitioners summoned on

account of the official discharge of their duties, therefore, on this

short ground itself not only the complaint but the summoning

order dated 30.05.2007 deserves to be quashed.

10. The second point which arises for consideration is to the

effect the non dispatch of notice to the petitioner no. 1/company.

There is no dispute about the fact that the company is a juristic

person and a notice under Section 138 of the Negotiable

Instruments Act ought to have been issued to the company as

the cheque was issued for on behalf of the said company by

petitioners no. 4 and 5. The notice has not been issued to the

company, therefore, the company could not have been made a

party because the very basic ingredient of Section 138 of the

Negotiable Instruments Act was not complied with.

11. As regards the Chairman-cum-Managing Director Sh.

Ashok K. Puri and Director (HR) who are sought to be impleaded

in the capacity of their being in-charge and vicariously

responsible under Section 141 of the Negotiable Instruments Act,

a perusal of the Trial Court record clearly shows that this was

not the case which was set up for the respondent/complainant in

the complaint that these two officials were in-charge and

responsible for the day to day conduct of the business of the

company. In the absence of such an averment in the complaint

itself it could not be assumed that both of them were in-charge

and responsible so as to answer to the complaint of the

respondent/complainant for prosecution of a case under Section

138 of the Negotiable Instruments Act.

12. The contention of the learned counsel for the respondent is

that notice under Section 138 of the Negotiable Instruments Act

is not required to be sent to the company is not a correct. The

judgment which has been relied upon by the learned counsel for

the respondent that a Director of a Company can be impleaded

under Section 138 of the Negotiable Instrument Act without

being a party cannot be found fault with but that does not say

that no notice should be issued to the company itself. The

judgment which has been relied by the respondent/complainant

only lays down that the company may not be necessary party

under Section 138 of the Negotiable Instruments Act. This

argument cannot be accepted in the instant case in as much as

the entire liability of claim of Rs.5,951/- arises qua the company

itself, the company is not made a party and in the absence of

notice having not been sent by the respondent/complainant to

the company itself the prosecution must fail and it could not be

justified that he could proceed against the Managing Director

and Director and that too without there being any averment

against them.

13. The next point which arises for consideration is that there

is no averment in the entire complaint that the cheque was

dishonoured on account of insufficiency of funds or on account

of exceeding the arrangements in the account on which the

cheque was drawn which is an essential requirement of Section

138 of the Negotiable Instruments Act. In the absence of such

an averment it could be safely said even the basic ingredients of

Section 138 of the Negotiable Instruments Act were not satisfied.

14. For the reasons mentioned above, I am of the considered

opinion that the complaint which is filed by the

respondent/complainant against the present petitioners is liable

to be quashed as it does not meet the requirement of initial

ingredients of Section 138 of the Negotiable Instruments Act, and

accordingly, the summoning order is also unsustainable. The

complaint no. 1073/2007 titled D. K. Sardana Vs. M/s Bharat

Heavy Electrical Ltd. and the order of summoning dated

30.05.2007 passed therein are quashed. A copy of this order be

sent to the learned Trial Court for information.

V.K. SHALI, J.

December 21, 2009 KP