Prashant Goel vs State & Anr
2009 Latest Caselaw 4119 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: 06th October, 2009
                        Judgment Delivered on: 13th October, 2009

+                             CRL.M.C.1660/2007


        PRASHANT GOEL                             ..... Petitioner
                              Through:   Mr.Mohit Mathur with Mr.
                                         Shishir Mathur, Advts.
                        versus

        STATE AND ANR.
                                                   ..... Respondents
                              Through:   Ms.Fizani Hussain, APP
                                         Mr.Harish Malhotra, Senior
                                         Advocate with Mr.Rajinder and
                                         Mr.Brij Bhushan, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the
        Digest?                                      Yes


INDERMEET KAUR, J.

1. This revision petition has impugned the order dated

15.2.2007 vide which the learned Metropolitan Magistrate

had summoned the petitioner herein on a complaint under

Section 138 of Negotiable Instruments Act.

2. The back ground has been detailed in the petition.

Petitioner is the son of the younger brother of respondent

no.2 namely late Sh. Ramesh Goel. Petitioner‟s father and

respondent no.2 had joint business. Respondent no.2 had

taken over control of the business while inducting the

petitioner as a partner in some of the businessess.

Thereafter there was a fall out between the parties. These

facts are undisputed.

3. Cheque bearing no.363712 dated 12.8.2003 drawn on

the Central Bank of India, Janpath, New Delhi for Rs.15 lacs

had admittedly been signed by Prashant Goel in favour of his

complainant uncle Suresh Goel. This cheque was presented

to the bank but was returned back on 6.08.2009 with a return

memo with the remarks „account closed‟. Legal notice dated

11.8.2003 had been issued to the petitioner herein. After the

expiry of the statutory period, payment having been not

received, complaint under Section 138 of Negotiable

Instruments Act had been filed.

4. The complaint was filed after a delay of five days. Vide

order dated 8.10.2004, the delay was condoned without

notice to the non-applicant and cognizance was taken of the

said complaint. A revision petition was preferred against the

said order. Vide order dated 02.8.2006 the said order was set

aside by the High Court with a direction to the learned

Metropolitan Magistrate to decide the application for

condonation of delay in the first instance after giving an

opportunity to the non-applicant herein and thereafter to

proceed with the complaint on its merits.

5. On 15.2.2007, after hearing the respective parties, the

Trial Judge condoned the delay which order is the subject

matter of this revision petition.

6. On behalf of the petitioner, it is the submitted that the

summoning order is bad in law and the condonation of delay

by the impugned order suffers from infirmity as there is no

explanation much less a plausible explanation for the delay

to be condoned; „sufficient cause‟ not having been explained,

impugned order is liable to be set aside. It is submitted that

the provisions of Section 200 of the Cr. P.C. have not been

complied with and after the delay had been condoned no

fresh pre-summoning evidence had been led. The cheque

had been returned unpaid for the reason that the account

stood closed; this had been replied to by the petitioner in his

reply to the legal notice dated 25.8.2003 but this has been

deliberately suppressed and concealed from the court.

Learned defence counsel has placed reliance upon a

judgment of the Hon‟ble Apex Court report in 2009 [3] JCC

[NI] 210 Jugesh Sehgal vs. Shamsher Singh Gogi to support

his submission that where a cheque is issued from an

account which was non-existent on the day it was issued,

having been closed, ingredients of Section 138 of Negotiable

Instruments Act are not met and the complaint is liable to be

quashed. Reliance has been placed upon a judgment

reported as 137 (2007) DLT 193 Exports India & Anr. vs. State

& Anr. to support his next submission that where the reply to

the notice had been concealed by the complainant, it was a

ground for quashing of the summoning order.

7. These submissions have been rebutted by the learned

counsel for the non-applicant.

8. Record has been perused.

9. On 15.02.2007 while condoning the delay the learned

Metropolitan Magistrate had considered the prayer made by

the complainant wherein it has been averred that he is an old

man aged 58 years suffering from hypertension and thyroid

problem and was under treatment with advice for bed rest up

to 25.9.2003; this was the reason which had prevented him in

filing the complaint within the statutory period. The counter

submissions of the non-applicant had also been considered

and after due deliberation the trial Court had exercised its

discretion and condoned the delay. This discretion has been

exercised fairly and justly; there are no malafides; discretion

has not been exercised capriciously. This order condoning

the delay calls for no interference.

10. In the complaint under Section 138 of Negotiable

Instruments Act, the documents annexed along with the

complaint comprise of the affidavit in evidence of the

complainant. It was on the basis of this material on record

that the summons had been issued. In these circumstances

there was no occasion of recording any further pre-

summoning evidence; it was not an oral deposition but the

documents which had been tendered along with the

complaint on which the cognizance has been taken. There is

a requisite compliance of section 200 of the Cr. P.C.

11. The complaint has been perused. It specifically states

that Prashant Goel had issued the cheque in discharge of his

liability towards the loan taken by him from the complainant.

This cheque had been returned unpaid on 06.08.2003 vide

return memo with the remarks "account closed". The

judgment relied upon by the learned counsel for the

petitioner has no application to the facts of the present case;

in the said judgment titled as Jugesh Sehgal (supra), while

detailing the ingredients of Section 138 of the Negotiable

Instruments Act, the Apex Court had held that the first

ingredient necessarily entails that the cheque must have

been drawn on an account maintained by the accused in a

bank. In that case the cheque had been issued from an

account which had not been maintained by accused no.1; the

said account being in the name of another person by the

name of Ms. Shilpa Chaudhary. The account pertaining to

someone else; the Court had held that it was a non-existent

account and the basic ingredient of Section 138 of Negotiable

Instruments Act being missing the said complaint had been

quashed.

12. This is not so in the instant case. The cheque had

admittedly been issued from an account which was

maintained by Prashant Goel; cheque had been returned

unpaid for the reason that the account stood closed; it is not

the case of the petitioner that this account is not his account.

13. The judgment reported in Exports India (supra) is

distinct in its facts. In that case, the transactions between

the parties related to undated blank cheques. This had been

specifically replied to in the reply to legal notice but had been

concealed. It was in these circumstances that a co-ordinate

Bench of this court had held that a complaint based on an

undated cheque given at the time of execution of the

agreement made out no debt or liability and as such the

complaint was held not maintainable. These facts are clearly

distinguishable from the instant case.

14. In construing a complaint under Section 138 of the

Negotiable Instrument Act, a hyper technical approach should

not be adopted. Provisions of Section 482 of the Cr. P.C. may

be resorted to in those cases where the ingredients of the

offence complained of are altogether lacking. They should not

be resorted to mechanically or routinely but with care and

caution and only when failure to interfere would lead to a

miscarriage of justice. The present case does not fall in this

category.

15. Summoning order calls for no interference. Revision

petition is without any merit. It is dismissed.

(INDERMEET KAUR) JUDGE

13th October, 2009 nandan