Delhi High Court
Sms Paryavaran Ltd & Ors vs Intergen Energy Ltd on 19 December, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 19th December, 2016
+ CRL.M.C. 4724/2016
SMS PARYAVARAN LTD & ORS ..... Petitioner
Represented by: Mr. Gagan Chhabra, Ms. Richa
Narang, Mr. Mayank Chawla &
Mr. Rohit Puri, Advs.
versus
INTERGEN ENERGY LTD ..... Respondent
Represented by:
+ CRL.M.C. 4746/2016
SMS PARYAVARAN LTD & ORS. ..... Petitioner
Represented by: Mr. Gagan Chhabra, Ms. Richa
Narang, Mr. Mayank Chawla &
Mr. Rohit Puri, Advs.
versus
INTERGEN ENERGY LTD. ..... Respondent
Represented by:
+ CRL.M.C. 4747/2016
SMS PARYAVARAN LTD. & ORS. ..... Petitioner
Represented by: Mr. Gagan Chhabra, Ms. Richa
Narang, Mr. Mayank Chawla &
Mr. Rohit Puri, Advs.
versus
INTERGEN ENERGY LTD. ..... Respondent
Represented by:
Page 1 of 8
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl. M.A. No. 19677/2016 in CRL.M.C. 4724/2016.
Crl. M.A. No. 19734/2016 in CRL.M.C. 4746/2016.
Crl. M.A. No. 19736/2016 in CRL.M.C. 4747/2016.
Exemption allowed subject to just exceptions.
CRL.M.C. 4724/2016 & Crl. M.A. No. 19676/2016 (stay)
CRL.M.C. 4746/2016. & & Crl. M.A. No. 19733/2016 (stay)
CRL.M.C. 4747/2016 & Crl. M.A. No. 19735/2016 (stay)
1. Aggrieved by the order dated 7th September, 2016 framing notice
against the petitioners under Section 251 Cr.P.C. in complaint case nos.
4993626/2016, 4993627/2016 and 4995507/2016 all titled as Intergen
Energy Limited Vs. SMS Paryavaran Limited & Others pending before the
learned Metropolitan Magistrate-1 (Negotiable Instrument Act), South West,
Dwarka, New Delhi, the petitioners preferred three revision petitions before
the Learned ASJ, which were dismissed vide the impugned order dated 25th
November, 2016. Hence, the present petitions.
2. Complaints were filed by the respondent as noted above inter-alia
alleging that the petitioners approached the complainant representing that
they had been awarded a project work by Nashik Municipal Corporation
(NMC) for carrying out design, construction, supply etc. of sewerage
treatment plants, thus requiring investments. Therefore, on the request of the
petitioners, respondent advanced a loan of ₹3.5 crores @19% per annum,
which was to be repaid on 15th March, 2014 along with the total interest of
₹42 lacs accruing over a period of eight months as described in the
resolution. It was further provided that further default interest of 25% per
annum would be levied on delayed payment. Thus on 12th July, 2013 a Loan-
cum-Hypothecation Deed was executed between the petitioner no. 1 and the
respondent No.1 with petitioners no. 2 to 4 as guarantors/confirming parties
to the loan agreement. Separate personal guarantees were also issued by
petitioners no. 2 to 4 on 12th July, 2013 for repayment of loan. The loan of
₹3.5 crores was transferred in two installments of ₹2.1 crores on 20th July,
2013 and ₹1.4 crores on 27th August, 2013. However, the petitioners failed to
repay the amount of loan. The payment was rescheduled. Even thereafter, the
petitioners failed to repay the loan amount. Extension of time for repayment
was granted and Third Amendment Agreement was entered into between the
parties on 5th August, 2014. However again, no payment was made. In terms
of the Third Amendment Loan Agreement dated 5 th August, 2014, the
petitioners gave fifteen post dated cheques drawn on State Bank of India and
Dena Bank in discharge of the loan amount/debt liability. When seven
cheques totalling for a sum of ₹1,37,96,251/- were presented, they were
returned with the memos "FUNDS INSUFFICIENT" on 22nd November,
2014 and 27th November, 2014 for which complaint case No.4993626/2016
was filed which is the subject matter of Crl.M.C. 4724/2016. Similarly,
Complaint case No.4993627/2016, subject matter of Crl.M.C. 4746/2016,
was filed when four cheques totalling for a sum of `83,38,438/- drawn on
Dena Bank were returned with the memos "STOP PAYMENT" on 21 st
November, 2014 and 22nd November, 2014. Another Complaint case
bearing No.4995507/2016 subject matter of Crl.M.C. 4747/2016 was filed
when four cheques drawn on State Bank of India totalling for a sum of
`1,43,46,395/- were returned with the memos "STOP PAYMENT" on 15 th
January, 2015.
3. In reply to the legal notices, the petitioners denied their liability on the
pretext that Sub-contractor Agreements were entered into with the
complainant. According to the complainant, the Sub-contractor Agreements
had no nexus with the loan agreement. After summons were issued and
petitioners entered appearance on 2nd September, 2016, the learned
Metropolitan Magistrate framed the following notice under Section 251
Cr.P.C. in Complaint case No.4993626/2016 against the petitioner no.1
besides the petitioners no. 2 to 4 and in the other complaints which were also
on similar lines: -
"IN THE COURT OF SH. DEEPAK KUMAR-II, MM-01, (NI
ACT) SOUTH WEST DISTRICT, NEW DELHI
Intergen Energy Ltd. Vs. M/S SMS Paryavaran Ltd.
C.C. No. 4993626/16
02.09.2016
NOTICE u/s 251 Cr.P.C.
I, Deepak Kumar-II, Metropolitan Magistrate, Delhi, do
hereby serve you accused company M/S SMS Paryavaran Ltd.
having its office at SH-2, Vardaman Grand Plaza, Plot No. 7,
Manglam Place, Sector-3, Rohini, New Delhi Through its
director Sudhir Narayan Modak with the following notice:-
It is alleged against you that you accused seven cheques in
question ;
Cheque No. Dated Drawn on Amount in Rs.
1. 870251 12.10.2014 SBI, ND 1,66,583/-
2. 870252 15.10.2014 SBI, ND 12,82,417-
3. 870253 02.11.2014 SBI, ND 12,82,417-
4. 870256 15.11.2014 SBI, ND 35,00,000/-
5. 870254 12.11.2014 SBI, ND 12,82,417-
6. 870257 23.11.2014 SBI, ND 12,82,417-
7. 870255 15.11.2014 SBI, ND 50,00,000/-
In discharge of your liability, but the abovesaid cheques when
presented for encashment were dishonoured vide returning memo
dated 25.11.2014 for the cheques bearing no. 870252, 870253,
870256 and 870251 with remarks "Funds Insufficient" and
another returning memo dated 27.11.2014 for the cheques
bearing number 870254, 870257 and 870255 despite service of
legal notice dated 08.12.2014 demanding the cheques amount in
question, you failed to pay the abovesaid amount within the
stipulated period of 15 days and you thereby committed an office
punishable U/s 138 of Negotiable Instruments Act and within my
cognizance.
Show cause why you should not be punished for the said offence
by this court.
(Deepak Kumar-II)
MM-01 (NI Act)/South West
Dwarka/New Delhi
02.09.2016
The abovesaid notice is read over and explained to the accused
in vernacular and he is questioned as under : -
Q. Have you understood the notice?
A. Yes.
Q. Do you plead guilty or claim trial?
A. I plead not guilty and claimed trail.
Q. Do you have any defence to make?
A. We did receive the legal notice. The cheques in question bear
my signature as director of the company i.e. accused no. 1. The
cheques in question were issued as guarantee cheques. The
amount has already been paid to the complainant in excess. The
complainant company had given us the deposit towards the
security for securing a sub contract from us. Complainant did not
perform the sub contract for which we have a case against the
complainant company and the presently matter is pending
between the parties before the arbitrator. In spite of receiving the
excess payment from us the complainant company snubbed us by
filing the present case.
(Deepak Kumar-II)
RO & AC MM-01 (NI Act)/South West
Dwarka/New Delhi
02.09.2016"
4. The grievance of the petitioners is that while directing framing of
notice, no detailed order was passed discussing the pleas of the petitioners as
to why notice should not be framed and merely because the petitioners had
the right to lead defence evidence, the same could not be a ground to deny
discharge at the stage of framing of notice. Arbitration proceedings between
the parties had been initiated and the respondent was asked not to present the
said cheques however it presented the same to implicate the petitioners. In
the order dated 2nd September, 2016 passed by learned Metropolitan
Magistrate, it was not reflected that the petitioners had argued the issues
raised before it resulting in the learned ASJ noting in the impugned order
dated 25th November, 2011 that the issues raised before him were not argued
before the learned Metropolitan Magistrate. The revision petitions were
dismissed by noting that advancement of loan, issuance of cheques and the
legal notice were not disputed and the defences if any be taken up in the
cross-examination.
5. The order directing framing of notice passed by learned Metropolitan
Magistrate reads as under:-
"Intergen Energy Ltd. Vs. M/S SMS Paryavaran Ltd.
C.C. No. 4993626/16
02.09.2016
Present:Sh. Sushil Shukla, Ld. Counsel for the complainant along
with AR of the complainant.
Ms. Richa Narang, Ld. Counsel for the accused persons
alongwith all the accused persons.
Notices U/s 251 Cr.P.C framed against all the accused persons
to which theypleaded not guilty and claimed trial. Plea of defence of
the accused persons have also been recorded.
At this stage, it has been pointed out by the Ld. Counsel for the
accused thatthe application u/s 145(2) N.I Act has already been filed
Submissions on the application heard. Record perused.
Since the accused persons have disclosed the plausible defence
therefore,they are afforded an opportunity to cross examine the
complainant on the NDOH.
In compliance of directions in circular No. 255/DLSA/Estt./DLSA
/2015/5207, theparties are referred to the daily continuous Lok
Adalat scheduled to be held on 24.09.2016 at 4:00 PM.
Parties are directed to appear before the Lok Adalat on
the said date. Ahlmad is directed to send the file complete
in all respect to the daily Lok Adalat immediately.
To come up for settlement, if any/ cross examination of the
complainant on 18.11.2016.
(Deepak KumarII)
MM (NI Act)01
SW/DWK/ND
02.09.2016"
6. Indubitably learned Metropolitan Magistrate in the order directing
framing of notice has not recorded the satisfaction whether a case for
framing of notice is made out, however this aspect has been noted by the
learned Metropolitan Magistrate while framing notice. In the reply to the
plea of guilt, the petitioners admitted issuance of cheques and service of
legal notice. Though it would have been in the interest of fair procedure if
the learned Metropolitan Magistrate had recorded a prima facie satisfaction,
but be that as it may, having heard the learned counsel for the petitioners,
this Court finds that the complaints disclose case for proceeding against the
petitioners by framing a notice for offence punishable under Section 138
Negotiable Instruments Act and merely because a detailed reasoned order
was not passed on 2nd September, 2016 by the learned Metropolitan
Magistrate, matter is not required to be remanded back. Pleas of the
petitioners are that they had no liability to pay, they had instructed the
respondent not to present the cheques, the cheques in question were issued as
guarantee cheques, amount had been paid in excess and that the sub-contract
was not performed. All these pleas can be ascertained either by cross-
examination of the respondent's witnesses or if the petitioners' lead the
defence evidence. At the stage of framing of notice, the Court was only
required to see that on the complaint, statements of the complaint's witnesses
and documents exhibited whether ingredients of offence punishable under
Section 138 NI Act were made out. Having satisfied thereon, the learned
Magistrate was not required to enter into an exercise of appreciating the
defence of the petitioners at this stage.
7. Petitions and applications are accordingly dismissed.
(MUKTA GUPTA)
JUDGE
DECEMBER 19, 2016
'MK'
