Delhi High Court
Sh. Sachin J. Nadig vs Dentsply India Private Limited on 30 September, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2371/2021
Date of Decision : 30.09.2021
IN THE MATTER OF:
SH. SACHIN J. NADIG ..... Petitioner
Through: Mr. Rajesh Inamdar, Mr. Amit Pai, Mr.
Shane Santos and Ms. Smita Pandey,
Advocates.
versus
DENTSPLY INDIA PRIVATE LIMITED ..... Respondent
Through: Mr. Vishwendra Verma, Advocate.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J. (ORAL).
CRL.M.A. 15683/2021 (Exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
CRL.M.C. 2371/2021 & CRL.M.A. 15682/2021 (Interim Stay)
1. The present petition has been filed under Section 482 Cr.P.C. on behalf of
the petitioner seeking quashing of the proceedings arising out of Complaint Case
No. 8452/2017 filed under Section 138 N.I. Act read with Section 142 N.I. Act,
pending before the learned Metropolitan Magistrate-03, Patiala House Courts,
New Delhi, and the consequential orders.
2. Learned counsel for the petitioner submits that in the present case the
petitioner had issued the cheque in question for Rs.5,02,316/- towards the
outstanding liability. He further submits that on receipt of the legal notice dated
12.05.2017, which was received on 20.05.2017, the petitioner, within the
stipulated period of 15 days, had made the aforesaid payment by way of NEFT
transfer on 03.06.2017. He thus submits that the entire debt has been cleared and
there was no occasion for the respondent to file a complaint under Sections
138/142 N.I. Act. It is also submitted that the complaint case is not maintainable
as the ingredients of the offence under Section 138 N.I. Act are not made out.
3. Mr. Vishwendra Verma, Advocate appears on behalf of the respondent on
advance notice and submits that the petitioner has filed the present petition with
mala fide intention. He further submits that as in 2016, the petitioner was in total
debt of Rs.10,61,952/-. He further submits that the legal notice was issued on
12.05.2017 which was received by the petitioner on 15.05.2017. He also submits
that the NEFT transfer of Rs.5,02,316/- made by the petitioner was not within 15
days period of the demand and further the same was not in any way towards the
clearance of the debt in the present case. Lastly, it is submitted that bailable
warrants were issued against the petitioner vide order dated 26.03.2021 passed
by the learned Metropolitan Magistrate.
4. I have heard the learned counsels for the parties and perused the materials
on record.
5. The fact situation as it emerges from a perusal of the averments made in
the petition and the submissions made by learned counsels for the parties is that
the petitioner is a proprietor of M/s Pujas Enterprises, Hubli, Karnataka, who in
course of dealing on behalf of the company, was having regular business
transactions from 2009 to 2015 with the respondent, a company involved in the
business of manufacturing, marketing and selling of various dental equipment
and its parts.
6. As per the complaint filed by the respondent, the petitioner had issued the
cheque in question in order to discharge its legally payable debt/liability towards
the respondent for the goods supplied by it to the petitioner from time to time.
On presentation, the cheque was dishonoured and returned with the remarks
'exceeds arrangement'. The petitioner was informed but he failed to take any
positive steps. Thus, a legal notice dated 12.05.2017 was issued calling upon
him to make the payment of the outstanding cheque amount within 15 days of
receipt of the notice. As the petitioner failed to make the outstanding payment,
the aforementioned complaint case was filed before the concerned Court.
7. Learned counsel for the respondent has made two-fold submissions -(i)
that the NEFT transfer of Rs.5,02,316/- made by the petitioner was beyond the
period of 15 days from the date of receipt/service of notice and (ii) that even
otherwise, the NEFT transfer was not towards the outstanding cheque amount
but towards other liability, the total liability being more than double of the
cheque amount i.e., Rs.10,61,952/-.
8. A perusal of the documents filed along with the petition would show that
in relation to the receipt of legal notice dated 12.05.2017, a 'track consignment'
Report of the Department of Posts, Ministry of Communications, Government of
India, has been placed on record. The same shows that an attempt to deliver the
item (i.e., the notice) was made on 15.05.2017 but the item was 'delivered' on
20.05.2017.
9. It has been averred on behalf of the petitioner that he had made an NEFT
transfer of Rs.5,02,316/- on 03.06.2017 and in this regard, on the same date, also
sent an email addressed to one Nagarajan K., the contents of which are
extracted below:
"Dear Sir,
Made NEFT for Rs. 5,02,316/- wit ref no. P17060390045705.
Kindly Acknowledge.
Regards
Pujas Enterprises
Sachin J.Nadig
HUBLI."
10. The above email is the only communication stated to be addressed by the
petitioner to the respondent in respect of the NEFT transfer. On a prima facie
view, a reading of this email does not lend support to the petitioner's claim that
the NEFT transfer was made towards the outstanding cheque amount.
11. From the above, it is apparent that the position of the parties remains
disputed on facts of the case. The issue as to whether this Court can enter into
disputed questions of facts, while exercising powers under Section 482 Cr.P.C.,
is no longer res integra. The Supreme Court in State Farm Corpn. of India Ltd.
v. Nijjer Agro Foods Ltd. and Others reported as (2005) 12 SCC 502 has taken
the following view in respect of exercise of power under Section 482 Cr.P.C. by
High Courts when there are disputed questions of fact involved:-
"3. Though, at this stage, we are not going into the merits, but
we may only note that the subject-matter of the two complaints
are four cheques in all amounting to Rs 76,55,917.47p.
According to the respondents, they made payment of Rs 40 lakhs
by six bank drafts after the issue of some of the cheques. Whether
the said payment has been made or it is towards some of the
amounts covered by the cheques are all the questions which can
be decided only at the trial of the complaint cases under Section
138 of the Negotiable Instruments Act and could not have been
made the basis of allowing the revision petition. The approach of
the High Court is clearly erroneous."
(emphasis added)
12. Similar view has been taken in S. Krishnamoorthy v. Chellammal reported
as (2015) 14 SCC 559, where the Supreme Court held that when there are
disputed questions of facts involved, the same would be a matter of trial and
cannot be decided in the proceedings under Section 482 Cr.P.C. Relevant extract
from the decision is reproduced hereunder:-
"5. The above defence of the respondent (the accused) before the
High Court, in the petition filed under Section 482 of the Code, is
nothing but absolutely factual in nature, which is neither
admitted by the complainant, nor apparent on the face of the
record. Such type of disputed factual defences could have been
appreciated only by the trial court, after the parties led their
evidence. In our opinion, the High Court committed grave error
of law in examining the allegations and counter-allegations
which are disputed and factual in nature in a proceeding under
Section 482 of the Code.
6. In Padal Venkata Rama Reddy v. Kovvuri Satyanarayana
Reddy2, this Court, explaining the law on the scope of Section
482 of the Code, has observed, in para 32, as under: (SCC p.
448)
„32. It would not be proper for the High Court to analyse the
case of the complainant in the light of all the probabilities in
order to determine whether conviction would be sustainable and
on such premise arriving at a conclusion that the proceedings
are to be quashed. In a proceeding instituted on a complaint,
exercise of inherent powers to quash the proceedings is called
for only in a case in which the complaint does not disclose any
offence or is frivolous, vexatious or oppressive. There is no need
to analyse each and every aspect meticulously before the trial to
find out whether the case would end in conviction or acquittal.‟
7. In view of the above position of law, we have no option but to
set aside the order passed by the High Court as it has entered
into highly disputed questions of fact and concluded that the
material before it was sufficient to cause reasonable suspicion in
the case of the complainant. That is not the ground on which
powers under Section 482 of the Code can be exercised by the
High Court."
(emphasis added)
13. On a perusal of the aforesaid decisions, this Court is of the view that
while exercising its power under Section 482 Cr.P.C., it would be expedient for
the Court to not go into the disputed questions of fact, the same being a matter
of trial.
14. In consideration of the aforesaid enunciation of law, the present petition is
dismissed, being devoid of any merits.
(MANOJ KUMAR OHRI)
JUDGE
SEPTEMBER 30, 2021
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