Delhi High Court
Gangotri Enterprises Limited & ... vs Sanjay Bansal on 19 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: January 19, 2017
+ CRL.M.C. 2011/2016 and Crl. M.A. Nos.8503/2016 (Stay) and
11546/2016 (Exemption from personal appearance)
GANGOTRI ENTERPRISES LIMITED & ORS. ..... Petitioners
Represented by: Mr. Dayan Krishnan, Sr.
Advocate with Mr. Subhiksh
Vasudev and Ms. Akashi
Lodha, Advocates.
versus
SANJAY BANSAL ..... Respondent
Represented by: Mr. Rajesh Mahindru,
Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By the present petition the petitioners pray for quashing of complaint
case No. NI-1080/14 titled "Sanjay Bansal vs. Gangotri Enterprises Ltd. &
Ors." and the order dated 16th January, 2015 issuing summons and the
proceedings emanating therefrom.
2. In the complaint the respondent alleged that as per the Memorandum
of Understanding dated 7th December, 2007 the respondent No.2 was to
supply bitumen/LDO, Bitumen emulsion on various dates as per the
demands by the petitioners at different sites. In lieu of the material supplied
the petitioners handed over two post-dated cheques bearing Nos. 038531 and
038532 for a sum of ₹25 lakhs each as guarantee against the supplies. It was
agreed that the petitioner No.1 would make regular payments and in case of
default the cheques could be presented for encashment. Towards the
discharge of an outstanding liability of ₹4.17 crores the petitioner gave
directions to the respondents to present the two cheques dated 25 th April,
2012 on the assurance that the same would be encashed on presentation. The
said cheques were returned unpaid with the remarks "account closed" vide
return memo dated 26th April, 2012. The respondent served legal notice
dated 17th May, 2012 and since despite the legal notice no amount was paid
complaint was filed. The said complaint was filed by the petitioners on 7th
July, 2012.
3. On coming to know about the complaint the petitioners approached
the respondent and a Memorandum of Agreement dated 7 th October, 2013
was entered into between the parties wherein the respondent acknowledged
the receipt of a new cheque equivalent to the earlier two security cheques for
a sum of ₹50 lakhs. As per the Memorandum of Agreement the application
for withdrawal of the complaint case was to be presented before the learned
Metropolitan Magistrate, Tis Hazari on the next date of hearing, that is, 17 th
January, 2014 and a copy thereof was supplied to the petitioners. The said
withdrawal application was duly signed by the respondent No.2. Since the
learned Presiding Officer was on leave on 17th January, 2014, the matter was
adjourned to 6th May, 2014 however, no application for withdrawal of the
complaint was filed. On 1st February, 2014 the respondent presented the
new cheque No.344158 for a sum of ₹50 lakhs which was duly honored.
Even on 6th May, 2014 neither the application for withdrawal of the
complaint was filed nor was the Court apprised of the settlement by the
respondent. On 1st October, 2014 the learned Metropolitan Magistrate
returned the complaint in view of the decision of the Supreme Court reported
as (2014) 9 SCC 129 Dashrath Roop Singh Rathore vs. State of Maharashtra
& Anr. Despite the fact that the respondent was to withdraw the complaint
pursuant to the Memorandum of Agreement dated 7th October, 2013 the
respondent re-presented the returned complaint before the learned
Metropolitan Magistrate, Shahdara which was numbered as NI/1080/14. On
16th January, 2015, the learned Metropolitan Magistrate took cognizance of
the offence and issued summons. Complaint was transferred to different
Courts. Finally on 19th February, 2016, bailable warrants were issued
against the respondent Nos. 2 to 5 resulting in the filing of the present
petition.
4. Learned counsel for the petitioners has drawn attention of this Court to
the Memorandum of Agreement dated 7th October, 2013, cheque No. 344158
drawn on Axis Bank Ltd. for a sum of ₹50 lakhs and the Bank statement of
the petitioners showing transfer of the amount of ₹50 lakhs to that of the
respondent.
5. On appearance before the learned Trial Court for cancellation of the
non-bailable warrants issued, learned counsel for the petitioners drew the
attention of the Court towards payment of ₹50 lakhs and the Settlement
Agreement noting that the complaint would be withdrawn. The learned Trial
Court posed a query to the learned counsel for the respondent who denied
that his father signed the Settlement Agreement however, admitted his
signatures on both the copies of the Settlement Agreement. Despite noting
the same, the Court was of the view that since there was no chances of the
settlement, the matter was required to be proceeded as per law.
6. Thus the issue before this Court is having accepted the cheque amount
of the two cheques which were dishonoured, that is, ₹50 lakhs by a new
cheque No.344158 duly credited to the account of the respondent and having
agreed to withdraw the complaint could the respondent pursue the complaint
on the pretext that since he had outstanding dues of ₹4.17 crores against the
petitioners, the amount of ₹50 lakhs received had been adjusted by him
towards other payments and the complaint was required to be proceeded.
7. Contention of learned counsel for the petitioners is that having
accepted the Cheque bearing No.344158 dated 30 th November, 2013 drawn
on Axis Bank Ltd. for a sum of ₹50 lakhs as against the two dishonored
cheques, which was duly encashed continuance of the proceedings against
the petitioners was an abuse of the process of the Court.
8. In the decision reported as 1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426 State of Haryana v. Bhajan Lal, the Supreme Court laid down the
guidelines for exercise of discretion under Section 482 Cr.P.C. for quashing
of a complaint case as under:
102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above,
we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that
too in the rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court
to act according to its whim or caprice.
9. Respondent Sanjay Bansal who was present along with his counsel on
12th August, 2016 admitted before the learned Trial Court his signatures on
the Memorandum of Agreement dated 7th October, 2013. The Memorandum
of Agreement dated 7th October, 2013 reads as under:
"MEMORANDUM OF AGREEMENT
This Memorandum of Agreement signed and agreed on this
day of 7th October' 2013 between M/s Gangotri Enterprises
Limited, B-158, Sector-A, Mahanagar, Lucknow-226006
through its Director Shri Ajeet Pandey (hereinafter referred to
as GEL) and M/s Petroleum Oils & Chemicals Ltd, 31/35,
Main Rohtak Road Punjabi Bagh (West) New Delhi Through
its Proprietor Shri Sanjay Bansal (hereinafter referred to as
POCL).
It is understood that POCL has been issued two security
cheques no.038531 & 038532 for ₹25,00,000/- each drawn on
Axis Bank Ltd, New Delhi. POCL has presented the cheques
and the same has returned as the account has been closed.
M/s POCL has filed a case no. 4868/1/12 U/s 138 NI Act at Tis
Hazari Courts, New Delhi against M/s GEL & its Directors.
It is solemnly resolved between GEL & POCL that M/s GEL
has now issued a new cheque no: 344158 drawn on Axis Bank
Ltd, New Delhi for ₹50,00,000/- (Rs.Fifty Lac Only) dated
30.11.2013 to M/s POCL against the above mentioned two
cheques of AXIS Bank. M/s POCL shall withdraw the above-
mentioned case no. 4863/1/12 from the Tis Hazari Courts
immediately and return the two cheques to M/s GEL as soon
as it is returned from the court. M/s POCL will present the
new cheque on the due date for encashment.
Agreed and signed this 7th Day of October' 2013 at Noida.
For M/s Gangotri For M/s Petroleum Oils &
Enterprises Limited Chemicals Ltd.
Sd/- Sd/-
AJEET PANDEY SANJAY BANSAL
Director Proprietor
Witness: Witness:
"MEMORANDUM OF AGREEMENT
This Memorandum of Agreement signed and agreed on this
day of 7th October' 2013 between M/s Gangotri Enterprises
Limited, B-158, Sector-A, Mahanagar, Lucknow-226006
through its Director Shri Ajeet Pandey (hereinafter referred to
as GEL) and M/s Petroleum Oils & Chemicals Ltd, 31/35,
Main Rohtak Road Punjabi Bagh (West) New Delhi Through
its Proprietor Shri Sanjay Bansal (hereinafter referred to as
POCL).
It is understood that POCL has been issued two security
cheques no.038531 & 038532 for ₹25,00,000/- each drawn on
Axis Bank Ltd, New Delhi. POCL has presented the cheques
and the same has returned as the account has been closed.
M/s POCL has filed a case no. 4868/1/12 U/s 138 NI Act at Tis
Hazari Courts, New Delhi against M/s GEL & its Directors.
It is solemnly resolved between GEL & POCL that M/s GEL
has now issued a new cheque no: 344158 drawn on Axis Bank
Ltd, New Delhi for ₹50,00,000/- (Rs.Fifty Lac Only) dated
30.11.2013 to M/s POCL against the above mentioned two
cheques of AXIS Bank. M/s POCL shall withdraw the above-
mentioned case no. 4863/1/12 from the Tis Hazari Courts
immediately and return the two cheques to M/s GEL as soon
as it is returned from the court. M/s POCL will present the
new cheque on the due date for encashment.
Agreed and signed this 7th Day of October' 2013 at Noida.
For M/s Gangotri For M/s Petroleum Oils &
Enterprises Limited Chemicals Ltd.
Sd/- Sd/-
AJEET PANDEY SANJAY BANSAL
Director Proprietor
10. It is thus apparent that as per the Memorandum of Agreement cheque
No.344158 for a sum of ₹50 lakhs dated 30th November, 2013 was given to
the respondent in discharge of the liability for two security cheque
Nos.038531 and 038532 for a sum of ₹25 laksh each which were
dishonoured and now having encashed the said cheque of ₹50 lakhs the
respondent cannot turn around and say that he has utilized the same in
discharge of the other debts of the petitioners and complaint under Section
138 of the Negotiable Instruments Act, 1881 (in short 'NI Act') should
continue. As noted above, the above noted complaint was for offence
punishable under Section 138 NI Act for dishonor of the two cheque
Nos.038531 and 038532 and not for any other offence for which the
respondent has entered into a settlement agreement. Hence the continuance
of the above noted complaint on the plea of the respondent now taken is a
clear abuse of the process of the Court. Consequently, complaint case No.
NI-1080/14 titled "Sanjay Bansal vs. Gangotri Enterprises Ltd. & Ors." and
the order dated 16th January, 2015 issuing summons and the proceedings
emanating therefrom are quashed.
11. Petition and applications are disposed of.
(MUKTA GUPTA)
JUDGE
JANUARY 19, 2017
'vn'
