Anju Mahajan vs M.G. Capital Services Ltd. & Ors.
2011 Latest Caselaw 1790 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRL.REV.P. 546/2009 and CRL.M.A.11687/2009

                                                      Decided on: 28.03.2011
IN THE MATTER OF :

ANJU MAHAJAN                                               ..... Petitioner
                          Through: Mrs. Avnish Ahlawat, Advocate with
                          Mr. Nitesh Kumar Singh, Advocate

                     versus

M.G. CAPITAL SERVICES LTD. & ORS.                    ..... Respondents
                    Through: Mr. Prashant Sharma, Advocate for R-1.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           Yes
        be allowed to see the Judgment?

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

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


HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner under Sections

397/401 read with Section 482 of the Cr.PC praying inter alia for quashing of

the complaint filed by respondent No.1/complainant under Sections 138/141

of the Negotiable Instruments Act, and for setting aside the orders dated

20.07.2009 and 19.08.2009, by which notice was issued by the learned

Metropolitan Magistrate to the petitioner/accused No.4.

2. Learned counsel for the petitioner states that the complaint filed

by respondent No.1/complainant against her client, accused No.4 is not

maintainable as a bare reading of the complaint does not disclose any

offence against the petitioner. She submits that the learned Metropolitan

Magistrate completely overlooked the fact that the cheque of `8 lacs, subject

matter of the complaint filed by respondent No.1/complainant under Section

138 of the Negotiable Instruments Act, was issued by respondent No.3

(accused No.2), Shri Ravi Gupta in his capacity as a partner of M/s Sunlit

Securities. However, the memo of parties of the complaint filed by

respondent No.1/complainant reveals that M/s Sunlit Securities was not

impleaded in the present case. A perusal of the memo of parties filed by

respondent No.1/complainant reveals that M/s Sunlit Financial Services was

impleaded as accused No.1, with its address given as "C/o M/s Sunlit

Securities, Dalhousie Road, Pathankot". Respondent No.3 and the petitioner

herein were impleaded as partners of M/s Sunlit Securities. It is the case of

the petitioner that M/s Sunlit Financial Services is a private limited company,

registered under the Companies Act. The certificate of incorporation of M/s

Sunlit Financial Services Pvt. Ltd. is enclosed as Annexure P-4. The said

company was incorporated under the Companies Act on 06.04.1999. The

Articles of Association and the Memorandum of Association are also placed

on record. All these documents are stated to have been filed before the

learned Metropolitan Magistrate.

3. Learned counsel for the petitioner submits that the reliance

placed by the complainant on the partnership deed of M/s Sunlit Securities is

misconceived. She further states that a perusal of the complaint filed by

respondent No.1/complainant also does not reveal the consideration, which

formed the basis of issuance of the cheque to the complainant and no role

whatsoever has been attributed to the petitioner in the complaint. In this

regard, she relies on the complaint enclosed as Annexure P-1 and the

affidavit by way of evidence filed by the Director of respondent

No.1/complainant enclosed as Annexure P-2. The attention of this Court is

also drawn to the notice dated 19.08.2009 addressed by the learned

Metropolitan Magistrate to the petitioner, wherein she has been described as

partner of the firm, M/s Sunlit Financial Services. It is submitted that the

petitioner was never a partner of M/s Sunlit Financial Services, which is a

private limited company. It is also submitted that the petitioner had filed an

application before the court below seeking discharge in the present case,

which was disallowed. A second application was filed by the petitioner with a

request to the learned Metropolitan Magistrate praying that respondent No.3

(accused No.2) should not be discharged from the matter based on a

settlement arrived at between him and the complainant. The said application

was also not considered by the learned Metropolitan Magistrate.

4. It is submitted by the learned counsel for the petitioner that in

the order dated 07.12.2004 passed by the learned Metropolitan Magistrate,

it was recorded that respondent No.3 had handed over a draft of `25,000/-

to respondent No.1/complainant, who had duly received the same. On

05.08.2005, counsel for respondent No.1/complainant requested that a

statement of the complainant may be recorded to the effect that the

complainant had settled all his grievances with respondent No.3 and that the

case against him may be dropped. She submits that the amount received in

settlement was not mentioned by the complainant at any stage of the

proceedings. Nor were the terms and conditions of the settlement arrived at

with respondent No.3 indicated and further, the complainant also did not

take any steps against respondent No.4, Mrs. Sushma Gupta, who had been

made a co-accused by the complainant in the pending proceedings before

the learned Metropolitan Magistrate. Pertinently, respondent No.4 is the

wife of respondent No.3.

5. Counsel for respondent No.1/complainant states that the

transaction, for which the cheque had been issued to the complainant, was

with M/s Sunlit Securities. He asserts that the complainant never dealt with

M/s Sunlit Financial Services Pvt. Ltd. He seeks to rely on the partnership

deed of M/s Sunlit Securities to state that the same indicates that the

business of the partnership firm was being done under the name and style of

M/s Sunlit Financial Services w.e.f. 01.08.1998. However, the very same

partnership deed relied upon by respondent No.1/complainant reveals, in

para 1 thereof, that it was agreed between the partners that the business of

the firm would be carried on under the name and style of M/s Sunlit

Securities with its head office at Dalhousie Road, Pathankot.

6. Pertinently, the memo of parties filed by respondent

No.1/complainant reveals that the complainant had impleaded M/s Sunlit

Financial Services as an accused without impleading M/s Sunlit Securities.

Counsel for respondent No.1/complainant is unable to explain the facts and

circumstances in which M/s Sunlit Financial Services, and not M/s Sunlit

Securities, was impleaded as accused No.1 in the complaint when it is his

own case that the cheque was issued by respondent No.3 as a partner of M/s

Sunlit Securities and the petitioner and respondent No.4 are stated to be the

partners of the said firm. Further, a perusal of the complaint bears out the

submission of the counsel for the petitioner that there is no specific

averment in the complaint with regard to the petitioner, except for a bald

and innocuous averment in para 3 of the complaint, to the effect that the

accused persons had issued a cheque of `8 lacs against the liabilities

towards the complainant company. Further, the affidavit by way of evidence

filed by the complainant shows that in para 3 thereof, accused No.1 has

been described as a company and not as a partnership firm, as contended

by the counsel for respondent No.1/complainant, and further, respondents

No.3 & 4 and the petitioner have been described as partners of accused

No.1/company. The list of witnesses enclosed with the complaint shows

that the complainant has cited the officer of the Pathankot Hindu Co-

operative Urban Bank Limited as witness No.2 and has called upon him to

produce the statement of account of "M/s Sunlit Financial Services C/o M/s

Sunlit Securities".

7. The petitioner has placed on record a letter dated 26.07.2001,

issued by respondent No.3 (accused No.2) addressed to the Branch Manager

of his bank, stating inter alia that the partnership firm, M/s Sunlit Securities

was no longer carrying on business and hence, Account No.525 in the name

of M/s Sunlit Securities be closed and that the cheque book of the account

No.525 had since been lost. It is from the very same account No.525 that

the cheque dated 01.03.2002 was issued in favour of respondent No.1 and

signed by respondent No.3 as a partner of M/s Sunlit Securities.

8. From the above, it is quite apparent that there are a number of

contradictions in the complaint, which are apparent on the face of the

record. Even as per the provisions of Section 138 of the Negotiable

Instruments Act, for a complaint to be maintained under the aforesaid

provisions, the complainant is required to implead a person, who has drawn

the cheque on an account maintained by him with a banker, for payment of

any amount of money to another person from out of that account. In the

present case, admittedly the cheque was drawn by respondent No.3, Mr.

Ravi Gupta in his capacity as a partner of M/s Sunlit Securities, which firm

has not been impleaded by the complainant. Further, the learned counsel

for the petitioner is justified in submitting that the complainant having

settled all his disputes with one of the partners, namely respondent No.3

and having decided not to proceed against respondent No.4, cannot

prosecute the present complaint against the petitioner alone, without even

revealing the exact amount purportedly received by the complainant in

settlement with the remaining co-accused. Learned counsel for respondent

No.1/complainant has also not been able to indicate from the record that

any specific amount was mentioned as having been received from

respondent No.3 (accused No.2) for dropping him from the case. Having

regard to the fact that the cheque in question was issued by the respondent

No.3 (accused No.2), who respondent No.1/complainant has decided not to

prosecute, on account of his having received some undisclosed amount from

the said respondent, respondent No.1/complainant now cannot be permitted

to continue prosecuting the complaint against the petitioner alone, more so

when there was no specific allegation levelled in the complaint against her.

9. In view of the aforesaid facts and circumstances, it is held that

the complaint filed by respondent No.1/complainant against the petitioner is

not maintainable. As a result, the petition is allowed and the complaint and

the orders dated 20.07.2009 and 19.08.2009 passed by the learned

Metropolitan Magistrate are quashed and set aside.

10. A copy of this order be forwarded to the trial court for

information.

                                                            (HIMA KOHLI)
MARCH 28, 2011                                                 JUDGE
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