Delhi High Court
Arun Kumar Khobragade vs Rahul Darbari on 18 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: February 18, 2019
+ CRL.M.C. 2496/2016 & CRL.M.A. 3584/2019
+ CRL.M.C. 2408/2017 & CRL.M.A. 2409/2019
+ CRL.M.C. 4115/2017 & CRL.M.A. 16497-16498/2017
CRL.M.A. 2261/2019
ARUN KUMAR KHOBRAGADE
RAS FROZEN FOODS PVT LTD & ANR
RAS FROZEN FOODS PVT LTD & ORS .....Petitioners
Through: Mr. Ashish Verma, Advocate
versus
RAHUL DARBARI .....Respondent
Through: Mr. Ajay B. Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
(ORAL)
In the above captioned two petitions, quashing of complaint of 26th
September, 2015 under Section 138 of Negotiable Instruments Act, 1881,
and summoning order of 29th September, 2015 relating to dishonor of
cheque of ₹25 lacs is sought on merits, whereas in the above captioned
third petition quashing of complaint of 11th December, 2015 relating to
dishonor of cheque of ₹25 lacs and summoning order of 25th February,
2016 is also sought on merits.
With the consent of learned counsel for the parties, the above
captioned three petitions have been heard together and are being disposed
of by this common order.
Learned counsel for petitioner submits that the cheques in question
were given for the purposes of purchase of shares. It is submitted that the
shares which were to be purchased never got transferred and it is not the
case of complainant that these shares were transferred. Reliance is placed
upon Supreme Court's decision in M/s Indus Airways Pvt. Ltd. & Ors. Vs.
M/s. Magnum Aviation Pvt. Ltd. &Anr. 2014 (4) SCALE 645 to seek
quashing of impugned complaint and summoning order.
On the contrary, learned counsel for respondent submits that the
summoning of petitioners is justified as the cheque amount was part
payment given by respondent-complainant to accused-company.
Attention of this Court has been drawn to e-mail of 27th May, 2013 sent
by petitioner-Arun regarding loan being classified as unsecured loan of
and collateral being treated as secured loans. Attention is also drawn to
the audited financial statement of accused-company (Annexure P-4) to
point out that the cheque amount is reflected in the financial statement of
accused as unsecured loan and so, the complaints in question deserve to
be proceeded with and so, dismissal of these petitions is sought.
Upon hearing and on perusal of complaints in question, impugned
summoning order, material on record and the decision cited, I find that
the stand taken by petitioner is refuted by respondent's counsel who
submits that the stand taken on behalf of petitioners pertains to the merits
of this case, which cannot be pre-judged and is required to be considered
after the evidence is recorded by trial court. This court is of the prima
facie opinion that the averments made in the complaints in question and
the agreement between the parties, justifies summoning of petitioner and
no case to quash complaints in question and the summoning order is
made out.
Accordingly, these petitions and the applications are disposed of
with liberty to petitioners to raise the pleas taken herein, before the trial
court at the appropriate stage.
These petitions and the applications are accordingly disposed of
while refraining to comment upon the merits of the case.
(SUNIL GAUR)
JUDGE
FEBRUARY 18, 2019
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