Delhi High Court
Dec Infosystems Pvt Ltd & Ors vs Hcl Infosystems Ltd on 11 April, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.3446/2011
Date of Decision:11.04.2012
DEC INFOSYSTEMS PVT LTD & ORS ..... Petitioner
Through: Mr. S. Chakraborty, Mr. B.B. Pradhan
and Mr. Ramesh Chandra Patra,
Advocate
Versus
HCL INFOSYSTEMS LTD ..... Respondent
Through: Mr. K.G. Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This is a petition under Section 482 Cr.P.C. for quashing the
summoning order dated 05.06.2009 passed by ld. M.M. and the
consequential proceedings arising thereof in the Complaint Case no.
1478/3/09 under Section 138 read with Section 142 of the Negotiable
Instruments Act (herein after referred to as "Act").
2. The facts of the case in brief are that an institute named Vidya
Bikash Educational Trust placed an order of 66 HCL Desktop Computers
with the respondent company having its registered office at Nehru Place,
New Delhi through the petitioner company situated at Orissa. In
pursuance of the said order, the petitioners issued two cheques bearing
no. 235609 and 235610 for Rs. 4,00,000/-as security against the supply
of the abovementioned desktops. On presentation of the said cheques by
the respondent to its banker, they were returned unpaid with the remarks
"funds insufficient" which led to the filing of the complaint case by the
respondents, wherein the petitioners were summoned. Hence, the present
petition.
3. The summoning order is assailed by the learned counsel for the
petitioners stating that the ld. M.M. has no jurisdiction to try the case as
their registered office is situated at Orissa and hence the Courts of Delhi
have no jurisdiction to try the matter. It has been further submitted by the
counsel that the impugned summoning order is bad in law as the cheques
issued by the petitioners were issued as security for supply of the
desktops by the respondents and not for the discharge of any debt or
liability. In order to substantiate this allegation, the counsel has relied on
the contents of the letter dated 19.05.2008 issued by the petitioners to the
respondent.
4. Per contra, the learned counsel for the respondent submitted that the
issue of jurisdiction has already been dealt with by this Court vide its
order dated 17.10.2011. It has been further submitted by the learned
counsel that the letter dated 19.05.2008 relied by the petitioners is forged
and fabricated and cannot be relied upon by this Court. It has been further
averred that the cheques were issued by the petitioners as a discharge of
their part liability towards the supply of goods by the respondents and the
petitioners cannot escape their liability and hence, the summoning order
deserves no interference at this stage.
5. Firstly, it must be noted that though the petitioner had taken up the
issue of jurisdiction as a ground for quashing the summoning order, but
in terms of order dated 17th October, 2011 of this Court, the learned
counsel stated on 6th March, 2012 not to press this ground.
6. Regarding the issue of cheques as security and not as a liability on
the part of the petitioners, it would suffice to say that this is a triable issue
and cannot be gone into by this Court at the present stage. In case
of M.M.T.C. Ltd. and Anr. Vs. Medchl Chemicals and Pharma (P)
Ltd. and Anr.: (2002) 1 SCC 234, the Apex Court has held that :--
"The law is well settled that the power of quashing criminal
proceedings should be exercised very stringently and with
circumspection. It is settled law that at this stage the Court is not
justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the complaint.
The inherent powers do not confer an arbitrary jurisdiction on the
Court to act according to its whim or caprice."
7. It has been reiterated by this Court innumerable times that at the stage
of summoning, the trial Court does not have to embark on a journey to find
out whether the averments made in the complaint will result in conviction of
the accused or not. The only criteria that has to be satisfied is that whether a
prima facie case has been made out or not and if the answer is in the
affirmative then the Magistrate is within his jurisdiction to issue process to
the accused persons.
8. This Court in Sarabjit Singh & Anr. Vs. State & Anr[Crl. MC
No.4041/2009], while deliberating on the issue of exercise of inherent
powers of this Court to quash the summoning orders against the accused
persons held ...
" 7.. I consider that whatever defence the petitioners have cannot be
gone into at this stage of summoning. At this stage, what is required
to be seen is as to whether from the complaint and the statements of
the witnesses examined in support thereof, there were sufficient
reasons to proceed against the petitioners. In the present
proceedings, the evidence could not be weighed and scrutinized, nor
a fishy enquiry could be done to see as to whether the present
complaint would ultimately lead to conviction of the petitioners or
not."
9. In the case of K.M. Mathew v K.A. Abraham & Others [2002(3)
JCC 1523], the Hon'ble Supreme Court held that when a Magistrate before
issuing process has come to the conclusion that the complaint prima facie
makes out the offence, the High Court shall be reluctant in exercising its
inherent powers to quash the proceedings. Undisputedly, powers under
Section 482 Cr.P.C has to be used sparingly and with great caution and only
in those cases where this Court comes to the conclusion that there was
manifest injustice or there was abuse of process of the court.
10. Further, even if it is assumed that the cheques were issued by the
petitioner as security, still the liability of the petitioners cannot be shifted.
Since cheques are also a mode of payment of money, it has to be presumed
that when a cheque was issued by the issuer, it was done in order to
discharge some liability on its part, under the provisions of Section 142 of
the Act. The onus of discharging the presumption raised under Section 139
of the Act is on the accused, which has to be done in the course of the trial.
Further, the authenticity of the contents of the letter relied upon by the
petitioners and disputed by the respondent can be decided only by the trial
Court after examination of evidence that would be produced by the parties
and it would be erroneous to comment on the veracity of the contents of the
letter without any evidence in this regard.
11. It would also be pertinent to mention that the counsel for the petitioner
has erroneously relied upon: Magnum Aviation (Pvt.) Ltd. Vs. State & Ors.,
wherein it was held by this Court that ..
"8.....Where the seller or manufacturer, on the basis of cheques
issued, manufactures the goods or procures the goods from
outside, and has acted upon the contract, the liability of the
purchaser gets fastened, the moment the seller or manufacturer
acts upon the contract and procures the goods. If for any reason,
the seller fails to manufacture the goods or procure the goods it is
only under those circumstances that no liability is created.
However, where the goods or raw material has been procured for
the purchaser by seller or goods have been manufactured by the
seller, it cannot be said that the cheques were not issued against
the liability. I consider that if the liability is not construed in this
manner, the sole purpose of making dishonour of the cheque as an
offence stands defeated. The purpose of making or enacting
Section 138 of the N.I. Act was to enhance the acceptability of
cheque in settlement of commercial transactions, to infuse trust
into commercial transactions and to make a cheque as a reliable
negotiable instrument and to see that the cheques of business
transactions are not dishonoured".
12. The facts of the case of Magnum Aviation (Pvt.) Ltd. (supra) are
entirely distinguishable and no help can be sought by the counsel for the
petitioner.
13. In view of the above discussion, the petition being devoid of any merit
is hereby dismissed.
M.L. MEHTA, J.
APRIL 11, 2012/akb
