Delhi High Court
M/S T G Leisure & Resorts (P) Ltd & ... vs M/S Ram Kumar Gupta ( Huf) on 5 October, 2018
$~15 to 19
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 05th October, 2018
+ CRL.M.C. 1271/2015 and Crl. M.A. 4630/2015
M/S T G LEISURE & RESORTS (P) LTD
& ORS ... Petitioners
Through: Mr. Sunil K. Mittal, Mr. Vipin K.
Mittal and Mr. Anshul Mittal, Advocates
versus
M/S RAM KUMAR GUPTA ( HUF) ..... Respondent
Through: Mr. Sanjay Mann, Advocate
+ CRL.M.C. 1272/2015 and Crl. M.A. 4632/2015
T G LEISURE & RESORTS P.LTD.
& ORS. ..... Petitioners
Through: Mr. Sunil K. Mittal, Mr. Vipin K.
Mittal and Mr. Anshul Mittal, Advocates
versus
RAM KUMAR GUPTA (HUF) ..... Respondent
Through: Mr. Sanjay Mann, Advocate
+ CRL.M.C. 1276/2015 and Crl. M.A. 4643/2015
T.G.LEISURE & RESORTS P. LTD.
& ORS. ..... Petitioners
Through: Mr. Sunil K. Mittal, Mr. Vipin K.
Mittal and Mr. Anshul Mittal, Advocates
versus
RAM KUMAR GUPTA (HUF) ..... Respondent
Crl. M.C. No.1271-72/2015, 1276/2015, 1278/2015, 1292/2015 Page 1 of 9
Through: Mr. Sanjay Mann, Advocate
+ CRL.M.C. 1278/2015 and Crl. M.A. 4646/2015
T.G.LEISURE & RESORTS P. LTD.
& ORS. ..... Petitioners
Through: Mr. Sunil K. Mittal, Mr. Vipin K.
Mittal and Mr. Anshul Mittal, Advocates
versus
RAM KUMAR GUPTA(HUF) ..... Respondent
Through: Mr. Sanjay Mann, Advocate
+ CRL.M.C. 1292/2015 and Crl. M.A. 4747/2015
M/S T G LEISURE & RESORTS ( P) LTD
& ORS ..... Petitioners
Through: Mr. Sunil K. Mittal, Mr. Vipin K.
Mittal and Mr. Anshul Mittal, Advocates
versus
M/S RAM KUMAR GUPTA ( HUF) ..... Respondent
Through: Mr. Sanjay Mann, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The respondent had filed five criminal complaints (CC
nos.4840/1/12, 5464/1/12, 5488/1/12, 5651/1/12, 5652/1/12) each
alleging offences punishable under Section 138 of the Negotiable
Instruments Act, 1881 having been committed by the petitioners qua
certain cheques which had been issued by them in favour of the
former, each upon presentation having been returned unpaid by the
bank, no payment having been made inspite of elapse of the statutory
period(s) in the wake of demand notice(s) which had been issued and
duly served. The Metropolitan Magistrate, after preliminary inquiry,
issued summons against the petitioners. The petitioners raised certain
contentions before the Metropolitan Magistrate at the stage of service
of notice under Section 251 of the Code of Criminal Procedure, 1973
(Cr. PC). The same having been repelled, the petitioners approached
the court of Sessions invoking its revisional jurisdiction by almost
identical revision petitions (CR Nos.125/14, 123/14, 122/14, 126/14,
124/14) which were dismissed by the orders that are impugned
through the petitions at hand submitted under Section 482 Cr. PC, the
prime submission being that the proceedings in the criminal cases are
an abuse of the process of court.
2. Both sides have been heard at length and the records have been
perused.
3. Against the above backdrop, question arose as to whether the
petitioner having availed of the remedy of revision should be allowed
to have recourse to the petition at hand as a substitute for virtually a
second revisional challenge or scrutiny which is clearly barred under
Section 397 (3) Cr.P.C.
4. This Court in an almost similar fact-situation, taking note of the
decisions of the Supreme Court reported as Krishnan Vs. Krishnaveni,
(1997) 4 SCC 241; Rajinder Prasad Vs. Bashir, (2001) 8 SCC 522 and
Kailash Verma vs. Punjab State Civil Supplies Corporation & Anr.,
(2005) 2 SCC 571 and following similar view taken by a learned
single Judge of this Court in Surender Kumar Jain vs. State & Anr.,
ILR (2012) 3 Del 99, in absence of a special case being made has
earlier declined to interfere by the ruling (dated 03.07.2018) in
Crl.M.C. 164/2018 Ajay Maini vs. The State Govt. of NCT of Delhi &
Ors. in exercise of extraordinary jurisdiction under Section 482
Cr.P.C.
5. Nonetheless the contentions of the petitioners have been
reconsidered to find if there has been a miscarriage of justice by
initiation of criminal action against the petitioners on the basis of
allegations set out in the criminal complaints referred to above.
6. It appears that the respondent (complainant) is the owner of
certain immovable properties in Village Tikri Kalan, New Delhi-110
041, the first petitioner being in the business of hospitality industry
desirous of setting up a motel, the other petitioners being its directors.
The parties had entered into a lease agreement on 09.06.2011
respecting the said immovable property in terms of which it was let
out by the complainant to the petitioners initially for a period of 108
months with effect from 01.09.2011, it being subject to renewal for a
further period of six years or in part.
7. The terms of the lease agreement would show that the
petitioners (lessee) were to pay a sum of Rs.21 Lakh p.m. as rent, in
addition to service tax and cess as may be applicable for using and
enjoying the said premises. It is also clear that the lessee had paid
unto the complainant (lessor) an amount of Rs.1,26,00,000/- in two
parts - as interest free security deposit which was to be refunded by
the lessor to the lessee after receiving back the vacant physical
possession of the leased property in good, equipped and decorative
condition, this subject to the lessee having paid the entire rent
alongwith service tax, cess and any other taxes applicable, as also
having cleared the charges payable for certain facilities like telephone,
electricity, water etc.
8. It appears that post dated cheques towards rent and service tax
were handed over at the time of creation of the tenancy. The ten
cheques which are subject matter of the pending criminal complaints
from which the present proceedings arise are part of the said post
dated cheques, five of them towards rent and the remaining towards
the service tax for the months of May 2012, December 2012, January
2013, February 2013 and March 2013 respectively.
9. It is not in dispute that the cheques were presented on or after
the dates purportedly appearing on each of them, during their validity,
each having been returned unpaid. It appears the reasons for return of
the cheques were indicated to be "payment stopped" on instructions
issued by the drawer (the petitioners). In the wake of the dishonor of
the cheques as above, notices of demand were issued within the
statutory period and complaints were filed after elapse of the period
prescribed in law.
10. It is the submission of the petitioners that difficulties had arisen
in the use and enjoyment of the leased property due to various reasons
including seepage, etc. and on this account certain correspondence
was exchanged but since there was no satisfactory resolution, the
petitioners were left with no option but to issue "stop payment"
instructions to the bank. It is submitted that against this backdrop, the
petitioners had also called upon the complainant not to present the
remaining post dated cheques which, even otherwise, as per the
understanding, could not have been presented for payment without
consent of the drawer. The first petitioner instituted a suit [CS (OS)
512/13] - for permanent injunction to restrain the complainant against
encashing the post dated cheques. The said suit came up before a
learned single Judge of this court on the original side on 29.08.2013
when it was admitted that the petitioners had surrendered the tenancy,
having handed over vacant and physical possession of the demised
premises to the respondent on 30.03.2013. Against this backdrop, the
remaining 34 post dated cheques were returned by the complainant to
the petitioners, some understanding about certification respecting
deduction at source of the tax liability having also been reached, the
suit being withdrawn and disposed of accordingly.
11. It is the contention of the petitioner that since the complainant
(lessor) has been holding on to the security deposit in the sum of
Rs.1.26 Crores, the liability arising out of five cheques being only to
the extent of Rs.1.05 crores, it is unfair, unjust and unconscionable on
the part of the respondent to continue with the prosecution of the
criminal complaints particularly against the backdrop of the fact that
the tenancy has come to an end and the vacant and physical possession
of the demised property has been returned on 30.03.2013. It is the
submission of the petitioners that the cheque in question were post
dated and could not have been presented without the prior consent and
approval of the drawer. It is also the submission of the petitioners that
against the interest free security deposit which was made at the
inception of the tenancy, there is no legally enforceable debt or other
liability subsisting on account of the dishonor of the five cheques and
in this context reliance is placed on M/s. Indus Airways Pvt. Ltd. and
Ors. vs. M/s. Magnum Aviation Pvt. Ltd. and Anr., 2014 (2) JCC 115;
(2014) 12 SCC 539.
12. It cannot be lost sight of that the determination of the lease by
return of the demised premises to the lessor on 30.03.2013 is an event
subsequent to the prima facie commission of the offences under
Section 138 of the Negotiable Instruments Act, 1881 which are the
subject matter of the criminal complaints brought on the basis of
dishonor of the aforementioned ten cheques, the last in chronology of
which arises out of demand notice dated 14.03.2013. On being asked,
the counsel for the petitioner fairly conceded that no reply was sent in
answer to the demand notices within the statutory period nor it was
suggested, directly, indirectly or even remotely that the liability
arising out of the dishonoured cheques could be adjusted by the payee
from out of the interest free security deposit held. The liability to
return the interest free security deposit had not arisen by the time the
cause of action for filing the criminal complaints had come up. Since
the handing of the vacant and physical possession of the premises was
a subsequent event that occurred on 30.03.2013, it was only on that
date and thereafter that the complainant became obliged to account for
the interest free security deposit. In fact prior to the said date, he had
no lawful reason or authority to draw from the security deposit so as to
claim the money which was stated to be due against the dishonoured
cheques.
13. The interest free security deposit, even otherwise, was not
meant to take care only of default in payment of rent. Various other
liabilities including on account of taxes or utility charges as indeed the
satisfaction about the condition in which the property was being
handed over required to be factored in such context. It was the
submission of the petitioners themselves that in terms of the
arbitration clause forming part of the lease agreement, the parties are
presently before an arbitrator vis-a-vis the refund of the security
deposit. Such deposit and arbitral proceedings relate to civil rights
and obligations, determination of such rights and obligations being
still pending, no benefit on that account can be claimed - not atleast at
this stage of the criminal process, in the context of proceedings
relating to offences under Section 138 of the Negotiable Instruments
Act.
14. On the foregoing facts and in the circumstances, it is clear that
the contentions of the petitioners at best give rise to questions of facts
which will have to be determined by the trial court on the basis of
evidence. [see Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, (2013) 3
SCC 330]. There is no case made out for any interdict by this court in
the criminal proceedings in the aforementioned five complaints at this
stage in exercise of jurisdiction under Section 482 Cr. PC.
15. The petitions and the applications filed therewith are dismissed.
R.K.GAUBA, J.
October 05, 2018
yg
