Delhi High Court
Meera Gupta & Ors vs Govt Of Nctd & Anr on 2 July, 2012
Author: Manmohan
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1749/2012
MEERA GUPTA & ORS ..... Petitioners
Through Mr. R. Rajappan with Ms. Rajasree
Ajay, Advocates
versus
GOVT OF NCTD & ANR ..... Respondents
Through Ms. Jasbir Kaur, APP for State
% Date of Decision: 2nd July, 2012
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J : (Oral)
Crl. M.A. 6108//2012 in Crl. M.C. 1749/2012
Allowed, subject to all just exceptions.
Crl. M.C. 1749/2012 & Crl. M.A. 6109/2012
1. Present petition has been filed under Section 482 of the Code of
Criminal Procedure, 1973 read with Article 227 of the Constitution of
India for setting aside the order dated 1st February, 2012 passed by the
Metropolitan Magistrate, Karkardooma Courts, New Delhi as well as
for quashing of the complaint filed under Section 138 of Negotiable
Instruments Act, 1881 (for short „NI Act‟).
2. Mr. R. Rajappan, learned counsel for the petitioners states that
the present case is not covered under Section 138 of NI Act as neither
the alleged cheques were drawn on any account maintained by the
company nor the same were dishonoured on account of „insufficient
funds‟ or „exceeding the amount arranged for‟. He further states that
though the present petitioners are the Directors of the company, but
they are not authorized to sign cheques. He also states that there is no
averment against the petitioners in the complaint. In this connection,
he relies upon the judgment of the Supreme Court in S.M.S.
Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr., 2005 VIII AD (SC)
107.
3. Having heard the learned counsel for petitioners and having
perused the complaint, this Court is of the view that the issues raised
in the present petition are purely factual and the petitioners‟ versions
cannot be accepted at this stage. For instance, the fact that the
petitioners are not authorised to sign the cheques, has to be proved by
them in trial.
4. Further, the reliance placed by learned counsel for the
petitioners on S.M.S. Pharmaceuticals Ltd. (supra) is misplaced
inasmuch as there is sufficient averment against the
petitioners/accused persons in the complaint wherein it is stated as
under:-
"2. That as part payment towards the said
liability accused no. 1 company acting through
accused no. 2 to 6 issued, under its stamp and
signature of accused no. 2, the cheque no. 988396
dated 18-07-2011, for an amount of Rs. 5,00,000/-
drawn on Syndicate Bank, Pusa Campus, IARI, New
Delhi-110012, in favour of the complainant, with the
assurance and undertaking that the same shall be duly
encashed on presentation......"
5. Moreover, if the petitioners‟ version is to be believed, then the
accused nos. 2 and 3 would have to be held guilty of fraud and
cheating. It would also have to be seen as to whether the said accused
persons acted in conspiracy with the petitioners or not. These facts
can be examined by the trial court only after considering the evidence.
6. This Court is also of the view that at the initial stage the Court
taking cognizance of the complaint under Section 138 of the NI Act is
only required to satisfy itself as to whether a prima facie case is made
out under the said provision. In the present case, the fact of the matter
is that a cheque was issued to the complainant bearing the stamp of
the company, which got dishonoured.
7. It is also well settled that cheques dishonoured for reasons other
than "insufficient funds" or "exceeding the amount arranged for" are
covered within the ambit of Section 138 of NI Act. In fact, the
Supreme Court in Modi Cements Ltd. vs. Shri Kuchel Kumar Nandi
(1998) 3 SCC 249 has held that even if stop payment instructions had
issued by the drawer prior to the encashment of the cheque, then also
Section 138 of NI Act would be attracted.
8. This Court is further of the opinion that at this stage
presumption of dishonour of cheques for insufficiency of funds under
Sections 118 and 139 of the NI Act would have to be drawn against
the accused persons. Of course, the presumption is a rebuttable one
and the petitioners will have an opportunity before the trial Court to
prove to the contrary.
9. Consequently, present petition and application are dismissed
but with no order as to costs.
MANMOHAN, J
JULY 02, 2012
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