Gajaraj Commercial P. Ltd. & Anr. vs State & Ors.
2012 Latest Caselaw 1854 Del

$~39
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+        CRL.M.C. No.978/2012

%        Judgment delivered on: 19th March, 2012

GAJARAJ COMMERCIAL P. LTD. & ANR.   .... Petitioners
                Through : Mr. Amarendra Sharan, Sr. Adv.
                with Mr. Mohit Mathur, Mr. Dev Datta
                Kamat, Adv.

                      versus

STATE & ORS.                                          ..... Respondents
                               Through : Ms. Rajdipa Behura, APP for
                               the State/R-1

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

CRL.M.A.3402/2012 & CRL.M.A.3403/2012 Exemption is allowed subject to just exceptions. Criminal M.A. stands disposed of.

CRL.M.C.978/2012

1. Vide the instant petition the petitioner has sought to quash orders dated 07.03.2012 passed by learned Metropolitan Magistrate, Patiala House Courts, New Delhi in Complaint Case No.2/1/11 titled as Amit Katyal and Ors. V. State and Ors. and all the consequential proceedings arising out of or initiated thereto in pursuance to the said order.

2. Mr. Amarendra Sharan, learned Senior Advocate, appearing on behalf of petitioners has submitted that respondent No.3 initially lodged a complaint against Mr. Subhash Gupta and N.D. Gupta for cheating, forgery and criminal breach of trust in conspiracy with Gulbir Madan before the Deputy Commissioner of Police, EOW on 29.07.2011 wherein it was stated that Subhash Gupta in connivance with N.D. Gupta, who was the auditor of the company M/s Krrish Green Homes Pvt. Ltd. had taken blank cheques from him dated 07.01.2011 of Rs.5 Crores and another cheque dated 10th January amounting Rs.4.9 Crores drawn on HDFC Bank, Anand Lok Branch for purposes payment of TDS and Advance Tax.

3. Further in the said complaint it is mentioned that it was later on disclosed that all of them were hands in glove with Gulbir Madan and have illegally misappropriated the said cheques and have never included his name as a signatory in that account. It is also mentioned in the said complaint that he apprehended that they might use his above mentioned cheques illegally to his disadvantage. The complaint also mentions that it is also an illegal act on part of N.D. Gupta being an Auditor and a separate complaint is also being filed against him in the institute of Chartered Accounts for his misconduct. 4 In supplementary complaint dated 05.08.2011 made to DCP, EOW by Mr. Amit Katyal/ respondent No.3, it was stated that he received a legal demand notice for the same cheques of the same amount from M/s. Gajraj Commercial Pvt. Ltd. i.e. respondent No.1 herein that the said cheques were issued to the petitioner by him for paying some loan.

5. It is also stated in the supplementary complaint that the bank had written Mr. Amit Katyal that since he is not the signatory to the said account therefore they cannot disclose any information regarding that account to him even then, it is mentioned in notice that the cheques have been bounced due to insufficient funds which seriously casts doubt on bank employees of being in connivance with them.

6. Learned Senior counsel has referred the loan agreement dated 25.05.2010 between petitioner company and respondent No.2 company wherein it is stated that:-

"C. The Borrower has availed a loan facility of Rs.21,55,00,000/- (Rupees Twenty One Crore Fifty Five Lakhs Only) on May 6, 2010 ("Loan Facility Date") from the Lender for its financing requirements, for the purposes of the Project. The above mentioned loan amounts availed by the Borrower from the Lender are hereinafter collectively referred to as the "Loan Facility"."

7. Learned counsel for the petitioners has also referred the another agreement dated 01.09.2010 between the same parties and the relevant point reads as under:-

"C. The Borrower has availed a loan facility of Rs.29,00,00,000/- (Rupees Twenty Nine Crores Only) on June 17, 2010 ("Loan Facility Date") from the Lender for its financing requirements, for the purposes of the Project. ("Loan Facility")."

8. Learned counsel has also referred Para 3.1 of Loan Agreement dated 01.09.2010 which reads as under:-

"3.1 The Borrower shall pay interest in respect of the entire outstanding unpaid principal balance of the Loan Facility and outstanding interest payments at a rate of 12% (twelve percent)

per annum ("Interest Rate"). The interest shall accrue from day to day and shall be computed on the basis of 365 days a year and be payable on a monthly basis ("Interest"). The Interest shall be paid on or before the 3rd day of every calendar month ("Interest Payment Date") directly to the designated bank account of the Lender."

9. It is submitted that petitioner presented cheques in question in his bank and same were dishonoured on 29.07.2011 and thereafter legal notice was issued to respondent No.2 and 3. Vide order dated 29.10.2011 the learned Trial Court issued summons against respondent No.2 and 3 on the complaint filed by petitioners.

10. Learned Senior Advocate further submits that thereafter, respondent No.2 & 3 filed criminal complaint against the petitioners wherein the petitioners are respondents No.4 and 8/accused. He has referred para 9 of the complaint wherein it is stated that while they received legal notice under Section 138 Negotiable Instruments Act, 1881 dated 29.07.2011 from the petitioner falsely stating that the said two cheques bearing No.249028 and 249029 were issued by the complainant towards repayment of a loan.

11. Learned counsel further submits that in response to the said complaint against the petitioners the learned Metropolitan Magistrate directed the police to file the status report in the said case.

12. Pursuance thereto the Action Taken Report dated 27.01.2012 was filed wherein regarding the complaint relating the matter of the company M/s Krrish Green Homes Pvt. Ltd. against Mr. N.D. Gupta, Subhash Chand Gupta, M/s. Gajraj Commercial Pvt. Ltd., Mr. Gulbir Singh Madan and others, it was submitted that the company M/s Gajraj

Commercial Pvt. Ltd. has filed a criminal complaint against the complainant/respondent No.2 & 3 herein under Section 138 N.I. Act before learned Metropolitan Magistrate, Saket Court regarding bouncing of the cheques. It was further disclosed that the next date of hearing is 02.03.2012.

13. Learned counsel has pointed out that in the complaint the complainant/respondent No.2 and 3 have concealed this fact, therefore, the learned Trial Judge directed the police to register a case against the petitioner in the absence of the fact mentioned above.

14. Learned counsel further submits that firstly there is contradiction between the two complaints lodged with the police and secondly there are two Loan Agreements between the petitioners and respondent No.2 and 3, therefore, the complaint against petitioners has been filed with some ulterior motive and just to harass them.

15. Notice issued.

16. Ld. APP Ms. Rajdipa accepts notice on behalf of State.

17. Let notice be also issued to respondent No.2 and 3, returnable on 14.08.2012.

CRL.M.A.3401/2012 Till the next date of hearing no coercive steps shall be taken against the petitioners.

Dasti.

SURESH KAIT, J MARCH 19, 2012 nn