Delhi High Court
M/S Paragon & Ors. vs State & Anr. on 9 September, 2010
Author: S.L.Bhayana
HIGH COURT OF DELHI AT NEW DELHI
Crl.M.C. No. 117/2008 & Crl. M.A. No. 489/2009
Reserved on: 03.08.2010
Date of Decision: 09.09.2010
M/S PARAGON & ORS. ... Petitioners
Through: Mr. Vijay Aggarwal, Adv.
Versus
STATE & ANR. ... Respondents
Through: Mr. Navin Sharma
counsel for the State.
Mr. V.K. Sidharthan, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local paper may be allowed
to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be referred in the
Digest? Yes
S.L. Bhayana, J.
The present petition has been filed by the petitioners under
Section 482 Cr.P.C with a prayer that the summoning order dated
13.12.2001 passed in criminal complaint case no. 4918/1/04 u/s 138
of N.I Act 1881 pending before the Trial Court be quashed.
2. Learned counsel for the petitioners submits that the
impugned order dated 13.12.2001 has been passed by the Trial
Court without application of mind and the same is liable to be set
aside. He further submits that the cheques in question were given
by the petitioners to the complainant as security and these were not
issued in order to discharge any liability and, therefore, the
petitioners have wrongly been summoned by the learned Trial
Court. In support of his case, learned counsel for the petitioners has
relied upon the judgment titled „Exports India & Anr. vs. State &
Anr., 137 (2007) DLT 193.
3. On the other hand, learned counsel for respondent no. 2
submits that the present petition is completely absurd and has been
filed with malafide intentions. He further submits that the
impugned summoning order was passed by the learned Trial Court
on 13.12.2001, whereas, the quashing of the same is filed by way of
present petition only on 14.1.2008 that is after about seven years,
which is absolutely abuse of process of law and, therefore, the
present petition is liable to be dismissed with exemplary costs.
4. I have heard the arguments from both the parties.
5. I have gone through the criminal complainant filed by the
respondent no.2/complainant. In the said criminal complainant, it is
mentioned that the complainant company received an order for
supply of 37062 pieces of Mens Cotton Sweaters from America,
USA. The complainant company used to manufacture there items
and used to export the same to U.S.A. The complainant company
has opened a Letter of Credit No. L-156309 dated 05.6.1999 and
complainant company and accused nos.1 to 3 through accused no.4
entered into a joint venture agreement dated 23.6.1999. The
petitioners undertook to get the sweater making job done in terms
of the agreement. The complainant company was to provide
finances to carry out the job of manufacturing sweaters under the
said joint venture business. The complainant company spent
Rs.46.63 lacs, which includes cost of yarn and it was supplied to the
petitioners. The first consignment of 5928 pieces were shipped to
America, USA on 30.9.1999 and a payment of Rs.12.89 lacs were
received therefrom. But, since the petitioners had failed to supply
the remaining consignment in time and there was continuous delay
on the part of the petitioners, the buyers in USA cancelled the order.
6. The petitioners issued a cheque to the complainant company
bearing no.216505 dated 20.9.1999 for Rs.33,33,951 drawn on
State Bank of Patiala, Bharat Nagar Chowk Branch, Ludhiana
covering the value of LC and other expenses, which was
dishonoured on presentation. They also issued two further cheques
for Rs.7.50 lacs on 07.4.2000 and Rs.15 lacs on 30.4.2000 but all
the cheques on presentation were dishonoured by the Bankers of
the petitioners.
7. On dishonourment of abovesaid cheques, a legal notice was
served upon the petitioners but no payment was made by them to
the complainant company.
8. A similar issue came up for consideration before this Court, in
the case of „Rajesh Agarwal vs. State & Anr‟ in Crl. M.C. No.
1996/2010 & Crl.M.A. No. 7672/2010, wherein it has been held as
under:
"18. In all above Criminal miscellaneous petitions, the
petitioners have come to this Court raising one or the
other defence. I consider that since summoning order
in all these cases have been issued, it is now the
obligation of these petitioners to take notice under
Section 251 of Cr.P.C, if not already taken, and enter
their plea of defence before the concerned MM court
and make an application, if they want to recall any
witness. If they intend to prove their defence without
recalling any complainant witness or any other witness,
they should do so before the Court of MM. These
petitions are, therefore, hereby dismissed.
19. The petitioners shall appear before the Court of
concerned MM and trial shall proceed as stated above."
9. Keeping in view the law laid down by this Court in the
aforesaid judgment, the petitioners are directed to appear before
the Court of MM and take notice under Section 251 Cr.P.C, if not
already taken and enter their plea of defence before the concerned
Court of MM and make an application if they want to recall any
witness and they can take all the defences before the concerned
Court of MM.
10. With these observations, the present petition alongwith
pending application stands dismissed with costs of Rs.10,000/- to be
paid to the respondent/complainant company before the Trial Court,
within one month from the date of the appearance of the petitioners
before the Trial Court. In case the petitioners fail to pay the
imposed costs to the respondent/complainant company, the Trial
Court is directed to recover the same from the petitioners as per
law.
11. The petitioners are directed to appear before the Trial Court
on 30.09.2010.
S.L.BHAYANA,J
SEPTEMBER 09 ,2010
KA
