Delhi High Court
Sharma Contracts (India) Pvt. ... vs State & Anr. on 17 January, 2012
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No. 2351/2011
% Judgment reserved on :11th November, 2011
Judgment delivered on: 17th January, 2012
SHARMA CONTRACTS (INDIA)
PVT. LTD. ..... Petitioner
Through: Mr.Subhasish Mohanty, Adv.
versus
STATE & ANR. ...... Respondents
Through: Ms.Ritu Gauba, APP for State.
Mr. J.K. Bhola, Adv. for Respondent no. 2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the instant petition, the petitioner has assailed the order
dated 15.4.2011 passed by the learned Metropolitan Magistrate, Delhi
whereby summons have been issued against the petitioner.
2. The facts of the case in brief are that the respondent
No.2/complainant dealt in plywood, Block board flush door, Laminates
Decorative and Adhesive with terms of the sale. The petitioner
approached the respondent No.2 for the purpose of supplying of ply
timer veneer of various sizes and quantity and after due negotiations,
the complainant agreed to supply the same. From April, 2010 till
October 9th, 2010, (with opening balance of `. 11,81,098/- as on 1st
April, 2010), the petitioner purchased material against acknowledged
invoices for a sum of ` .2,14,50,519/- details of which are as under:
S.No. Sales Bill No. Amount
th
1 6 April, 2010 001 3,08,667/-
2 6th April, 2010 002 3,56,954/-
3 10th April, 2010 003 9,05.766/-
4 15th April, 2010 004 89,270/-
5 15th April, 2010 005 8,23,806/-
6 26th April, 2010 007 5,71,445/-
7 30th April, 2010 008 8,17,607/-
8 3rd May, 2010 009 14,41,683/-
9 4th May, 2010 010 17,862/-
10 4th May, 2010 011 1,15,380/-
11 5th May, 2010 012 7,62,140/-
12 11th May, 2010 014 70,549/-
13 15th May, 2010 015 19,556/-
14 18th May, 2010 016 1,89,109/-
15 19th May, 2010 017 4,39,353/-
16 19th May, 2010 018 3,61,648/-,
17 21st May, 2010 019 1,94,054/-
18 22nd May, 2010 020 1,74,270/-
19 25th May, 2010 024 6,51,507/-
20 26th May, 2010 025 13,61,424/-
21 27th May, 2010 027 5,93,691/-
22 28th May, 2010 028 3,50,650/-
23 28th May, 2010 029 8,426/-
24 3rd June, 2010 035 13,26,342/-
25 8th June, 2010 039 39,05,667/-
26 12th June, 2010 044 14,05,576/-
27 26th June, 2010 055 39,806/-
28 26th June, 2010 056 2,10,947/-
29 29th June, 2010 061 1,10,356/-
30 14th July, 2010 075 1,54,182/-
31 15th July, 2010 076 3,43,844/-
32 16th July, 2010 077 1,09,706/-
33 16th July, 2010 080 1,93,853/-
34 16th July, 2010 081 85,410/-
35 16th July, 2010 082 3,53,692/-
36 16th July, 2010 083 3,10,609/-
37 16th July, 2010 084 3,13,656/-
38 17th July, 2010 089 3,17,471/-
39 9th October, 2010 147 4,63,487/-
4. Against the supply of the material and after being approved and
acknowledged, the following payments were made:
S. No. Dated C. No. Amount Remarks
1 13th April, 2010 929483 3,00,000/- Passed
2 15th April, 2010 928912 61,591/- Passed
3 5th May, 2010 012 (Claim) 23,813/- Settled
929918
4 30th May, 2010 929918 1,55,136/- Passed
5 1st June, 2010 931501 3,49,799/- Recd thru
RTGS RTGS
6 5th June, 2010 929967 4,99,807/- Passed
7 18th June, 2010 929919 3,14,572/- Recd. D/D
122059
8 5th July, 2010 929968 4,99,807/- Recd. Thru
RTGS
9 25th July, 2010 931354 4,99,807/- Passed on
01/10/10
10 6th August, 2010 931391 4,72,762/- Bounced
11/01/11
11 12th August, 2010 931392 4,72,762/- Bounced
11/01/11
12 22nd August, 2010 931353 4,99,807/- Recd. D.D/
121984
13 22nd August, 2010 931394 7,18,285/- Bounced
11/01/11
14 7th Sept. 2010 931395 7,00,000/- Bounced
11/01/11
15 13th Sept. 2010 933716 4,99,807/- Recd. D/D
121984
16 18th Sept. 2010 931396 7,37,841/- Bounced
11/01/11
17 25th Sept. 2010 931397 7,00,000/- Bounced
11/01/11
18 15th October, 2010 917419 28,24,754/- Bounced
11/01/11
19 15th Nov., 2010 917420 28,24,754/- Bounced
11/01/11
20 15th Dec., 2010 917421 28,24,754/- Bounced
11/01/11
21 15th Dec., 2010 917586 28,24,753/- Bounced
11/01/11
22 28th Dec., 2010 933701 7,27,474/- Bounced
11/01/11
23 9th January, 2011 933957 4,63,487/- Bounced
11/01/11
24 15th January, 2011 933702 7,27,474/- Bounced
29/01/11
25 25th January, 2011 933703 7,27,475/- Bounced
29/01/11
5. Out of 25 cheques as mentioned above, 14 cheques were
dishonoured on different dates for the reasons "Exceed Arrangements"
6. The petitioner has raised a legal issue vide the instant petition
that respondent No.2 filed one complaint in regard to all the 14
cheques. Vide order dated 15.4.2011 and 2.7.2011, learned
Metropolitan Magistrate has issued summons to the petitioners Nos.1
to 3.
7. Learned counsel for the petitioner has relied upon Kershi
Pirozsha Bhagvagar v. State of Gujarat & Anr, 2007 Crl.L.J. 3858,
where it was observed that one complaint case can be filed maximum
against three dishonoured cheques, whereas respondent No.2 has filed
the complaint case against 14 cheques.
8. I note on his submission that notice was issued in the instant
petition vide order dated 2.7.2011 and the proceedings were stayed
before the trial court.
9. I further note the payment schedule in respect of S.R.
Enterprises and Shankar Timers, details of which are as under:
"S.No. Cheque No. Date Amount Payment
Schedule
1 931391 06.8.10 4,72,762.00 15.12.10 to
30.12.10
2 931392 12.8.10 4,72,762.00 -Do-
(S.R.E.)
3 931394 22.8.10 7,18,285.00 -Do-
(S.R.E.)
4 917332 01.7.10 96,209.00 -Do-
(Shankar
Timber)
5 929965 14.8.10 4,27,771.00 -Do-
(Shankar
Timber.)
6 931388 25.8.10 3,73,182.00 -Do-
7 917419 15.10.10 14,12,377.00 -Do-
(S.R.E.)
(50%)
39,73,348.00
8 931395 7.9.10 7,00,000.00 15.01.11 to
to 30.01.11
(S.R.E.)
9 931396 18.9.10 7,37,841.00 -Do-
10 931397 25.9.10 7,00,000.00 -Do-
11 931389 5.9.10 4,00,000.00 -Do-
(Shankar
Timber)
12 931390 25.9.10 3,86,591.00 -Do-
13 917419 15.10.10 14.12.577.00 -Do-
(S.R.E.)
(50%)
14 917420 15.11.10 2824754.00
71,61,563.00
15 917421 15.12.10 28,24,754.00 15.2.11 to
28.2.11
(S.R.E.)
Total Rs. 39,73,348.00
Rs. 71,61,563.00
Rs. 28,24,754.00
Rs.1,39,59,665.00
10. Learned counsel for the petitioner has referred to Sec. 219 of the
Criminal Procedural Code, 1860. For the convenience, it is reproduced
as under:
"(1) When a person is accused of more offences than one of
the same kind committed within the space of twelve months
from the first to the last of such offences, whether in respect
of the same person or not, he may be charged with, and tried
at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable
with the same amount of punishment under the same section
of the Indian Penal Code (45 of 1860) or of any special or
local laws:
Provided that, for the purposes of this section, an
offence punishable under section 379 of the Indian
Penal Code (45 of 1 860) shall be deemed to be an
offence of the same kind as an offence punishable
under section 380 of the said Code, and that an
offence punishable under any section of the said
Code, or of any special or local law, shall be
deemed to be an offence of the same kind as an
attempt to commit such offence, when such an
attempt is an offence."
11. Learned counsel submits that when a person commits more
offences than one of the same kind committed within a period of 12
months from the first to the last of such offences whether in respect of
the same person or not, he may be charged with and tried by one trial
for any number of them not exceeding three.
12. Learned counsel further submits that the cheques in question
were issued on different dates for the different transactions, therefore,
each transaction is independent and if there is any default, each would
have a different offence. Therefore, filing of one complaint against
dishonour of 14 cheques is barred by Section 219 of Criminal
Procedural Code, 1860 as referred to above.
13. On the other hand, learned counsel for respondent No.2 has
submitted that all the cheques were given on different dates however
were of the same transaction. Out of the total cheques 25 in number,
only 14 were dishonoured, however remaining honoured.
14. Ld. Counsel has relied upon the case of this Court in Lalit
Fabrics Private Limited v. Linkers Associates Limited 1995 Law Suit
(Del) 874, wherein it is held that all the cheques were of different dates
and on presentations, the said cheques were dishonoured from time to
time for the reasons of "Insufficient Funds", cannot be said to lose its
right to initiate criminal complaint merely on the groud that notice
related to more than one cheque, such interpretation of Section 219
Criminal Procedural Code, 1860 would be contrary to the very spirit of
of Section 138 of Negotiable Instruments Act, therefore, the Court was
of the opinion that notice in respect of more than one cheques
disentitles the payee to initiate action under Action 138 of Negotiable
Instruments Act.
15. Learned counsel has further relied upon a case decided by the
Andhra Pradesh High Court in B. Venkat Narendra Prasad and Anr
v. State of A.P. III (2003) BC 319 wherein it was held as under"
"17. The facts of the case would go to show that the accused
had a running ledger account with the 2nd respondent and
the purchases and payments made by them were debited and
credited in the account books which were maintained in the
regular course of business. Thus, the accused-company had
a single ledger account with the 2nd respondent in respect
of all transactions made by the accused-company.
Therefore, there is nothing wrong in filing a single
complaint in respect of dishonour of several cheques. The
contention of the learned Counsel for the petitioners on this
aspect is thus devoid of merit."
16. And he also referred the case of Karnataka High Court in
Tiruchandoor Muruhan Spinning Mills (Private) Limited v.
Madanlal Ramkumar Cotton and General Merchants 2000 Law Suit
(Kar) 486 where in it was held as under:
"6. Insofar as the important question raised for
consideration in this petition that the provisions of Section
219 of the Cr. P.C. is attracted to the facts of the case is
concerned, it is contended that cause of action for the
complainant arose only after service of notice to the
accused. It is pointed out that the complainant has issued a
single notice calling upon the accused by way of demand to
pay the cheque amount within 15 days from the date of
service of notice and the accused failed to pay the cheque
amount within the time stipulated under Section 138(b) of
the Act and therefore the complainant filed a complaint
within one month from the date of service of notice which is
well within time. There is no bar for lodging a complaint for
initiation of action under Section 138 of the Negotiable
Instruments Act as the accused committed the offence
punishable under Section 138 of the Negotiable Instruments
Act. In fact it is not to his disadvantage but it is an
advantage that a single complaint is lodged against the
accused by the complainant. The cause of action giving
raise to a complaint is upon the service of notice
contemplated under Section 138(b) of the Negotiable
Instruments Act and not upon the dishonour of the cheques
and therefore the contention canvassed by the learned
Counsel for the respondent that the provisions of Section
219 of the Cr. P.C. are not applicable to the proceeding
under Section 138 of the Negotiable Instruments Act has to
be accepted."
17. Learned counsel has also relied upon a case of this Court
reported as Alpha Graphics v. Arjun Kohli 148 (2008) Delhi Law
Times 373 wherein it was held as under:
"10. Turning to the next submission regarding one
complaint being filed for as many as 20 dishonoured
cheques, a reference may be made to Section 219 CrPC
which reads as under:
Section 219 Three offences of same kind within year may be
charged together - (1) When a person is accused of more
offences than one of the same kind committed within the
space of twelve months from the first to the last of such
offences, whether in respect of the same person or not, he
may be charged with, and tried at one trial for, any number
of them not exceeding three. (2) Offences are of the same
kind when they are punishable with the same amount of
punishment under the same section of the Indian Penal Code
(45 of 1860) or of any special or local laws: Provided that,
for the purposes of this section, an offence punishable under
Section 379 of the Indian Penal Code (45 of 1860) shall be
deemed to be an offence of the same kind as an offence
punishable under Section 380 of the said Code, and that an
offence punishable under any section of the said Code, or of
any special or local law, shall be deemed to be an offence of
the same kind as an attempt to commit such offence, when
such an attempt is an offence.
11. The purport of the above provision is that where a
person is accused of more than one offence of the same kind
committed within the space of twelve months he can be
charged and tried at one trial for, any number of them not
exceeding three. The stage for determining whether there
should be more than one charge and therefore more than
one trial has not yet been reached. That will be decided at
the appropriate stage by the learned trial court as and when
charges are framed. This issue should therefore be
appropriately addressed to that Court. The mere reference
in the complaint to 20 cheques as having been dishonoured
cannot render the complaint bad in law or not maintainable.
The order of the learned MM issuing summons also does not
get invalidated on that score. The second submission of
learned Senior counsel for the Petitioner is also rejected."
and that of Bombay High Court in Rajasthani Trading Co. & Anr. v.
Chemos International Limited & Anr. II (2001) BC 426 observing:
"It is true that in the instant case petitioner has issued 27
cheques, 2 of which were dated 30.11.1996 while the
remaining were dated 26.2.1997. Thus all the 27 cheques
came to be issued to respondent No.1, within a span of less
than 3 months. It is also true that dishonour in respect of
each cheque would constitute separate offence. However, it
is to be borne in mind that all the 27 cheques were presented
to the Bank on one and the same date and they were
dishonoured by the Bank. The intimation of dishonour of the
cheques was given by the Bank to respondent No.1 on one
and the same date i.e. 10.3.1997. It may further be noted
that a single notice dated 19.3.1997 in respect of the
dishonour of all the 27 cheques was given to the petitioners.
The offence under Section 138 is deemed to have committed
when the drawer of the chques fails to make payment of the
amount of money within 15 days of the receipt of the demand
notice given under Section 138(b) of the Negotiable
Instruments Act. It is also material to note that all the 27
cheques issued by the petitioner were in connection with a
single transaction entered with respondent No.1. Therefore,
the provisions of Section 220(1) of Cr. P. Code permits the
respondent No.1 to file one complaint against the petitioners
in respect of the said transaction and the petitioners can be
tried together for the dishonour of 27 cheques which in fact
forms the same transactions. In this respect Mr.
Sathyanarayanan referred to the decision in K. Govindaraj
v. Ashwin Baral, I (1998) BC 581=1998 Crl.L.J 22, which
was a case in respect of 6 dishonoured cheques given to the
complaint within a period of three months. The Madras
High Court held that the cheques through given on different
dates, were presented on one particular date as requested by
the accused, and, therefore, one offence must be deemed to
have been committed in respect of the single transaction. It
was further held that acts of giving the cheques were merged
together to form the same transaction. Therefore, the
accused should be charged and tried at one trial for such an
offence. It was, however, held that even otherwise Section
220(1) of the Cr. P. Code permits for such a single trial. I
am inclined to adopt the same view taken by the Madras
High Court. Consequently, it will have to be held that the
challenge given by the petitioners in this petition cannot be
sustained. The learned Magistrate must be held to be right
in holding that the petitioners can be tried at a single trial
for the dishonour of all the 27 cheques."
18. Keeping in view the above discussion and the settled law in
view, I am not inclined to interfere with the order passed by learned
Metropolitan Magistrate, dated 15th April, 2011.
19. The interim order passed is vacated and Crl.M.A.No.8602/2011
stands disposed of as such.
20. Accordingly, Crl. M. C. No.2351/2011 is dismissed.
21. No order as to costs.
SURESH KAIT, J
January 17, 2012
Raj /jg
