Delhi High Court
Mutivision Communications System Pvt ... vs Harender Singh on 27 September, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th SEPTEMBER, 2024
IN THE MATTER OF:
+ CRL.M.C. 4280/2022 & CRL.M.A. 17521/2022
MUTIVISION COMMUNICATIONS SYSTEM PVT LTD & ORS.
.....Petitioners
Through: Mr. Paran Kumar, Advocate.
versus
HARENDER SINGH .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Petitioners have approached this Court challenging Order dated
26.07.2022 passed by the learned Metropolitan Magistrate in CC
No.13574/2017 rejecting an application filed by the Petitioners under
Section 311 CrPC. The proceedings arise out of a complaint instituted by the
Respondent under Section 138 of the NI Act.
2. Petitioner No.1 is a company incorporated under the Companies Act,
Petitioner No.2 is the Managing Director of Petitioner No.1/company and
Petitioner No.3 is Director of Petitioner No.1/company and all of them are
accused in the said complaint under Section 138 of the NI Act.
3. It is stated in the complaint under Section 138 of the NI Act that
Petitioner No.2, i.e., Accused No.2 in the complaint, met with the
Respondent/Complainant in the year 2016 and told him about the Accused
No.1 which at that point of time was being run by the Petitioner No.3 who is
the mother of Petitioner No.2.
4. It is stated that the Petitioner was told about the investment plan in
which the Complainant was promised return of 2.5% per month on the
investment of Rs.5 lakhs. It is stated that the Complainant arranged for the
said amount by taking the help of his friends and relatives. It is stated that
Petitioner No.2 issued a post dated cheque of March, 2017 for the sum of
Rs.5 lakhs for the return of the principal amount.
5. It is stated that initially the interest was being paid on time to the
Complainant but later on, the Complainant stopped getting interest from the
Petitioners. It is stated that somewhere in the first half of June, 2017, the
Respondent/Complainant met Petitioner No.2/accused and requested him to
return the principal amount. It is stated that Petitioner No.2 after calculating
the pending/due return, issued two post dated cheques dated 15.06.2017
amounting to Rs.4 lakhs and Rs.2 lakhs in favour of the Respondent.
6. It is stated that after the due date, the Petitioner deposited the cheque
bearing No. 568619 dated 15.06.2017 amounting to Rs. 4 lakhs with his
banker IndusInd Bank, Sector-7, Rohini but the said cheque had been
returned with endorsement 'funds insufficient' vide returning memo dated
19.06.2017.
7. It is stated that that Legal Notice dated 17.07.2017 under Section 138
of the Negotiable Instruments Act was issued to the Petitioners which was
served but payments were not made and therefore complaint has been filed
by the Respondent under Section 138 of the NI Act.
8. Trial has commenced. The Petitioners have filed an application under
Section 311 CrPC summoning of two witnesses, i.e., Navneet Singh and
Aditya Singh. The reason given in the application under Section 311 CrPC
was that the Complainant was in the habit of filing false and frivolous cases
of cheque bouncing against persons which was confirmed by DW-2/Sandeep
Arya. It is stated that the Respondent/Complainant has filed 15-20 cases of
cheque bouncing against various people at different places. It is stated that
the Respondent/Complainant has filed five cases of cheque bouncing against
one Aditya Singh. It is stated in the application that one Navdeep Singh,
Advocate, gave him Rs.45,000/- to the Complainant but the Complainant
was refused to acknowledge the same. Paragraph 6 to 9 of the application
under Section 311 CrPC reads as under:-
"6. It is submitted that Sh. Navneet Singh, is an
Advocate, on behalf of Sh.Sandeep Arya as well as Mr.
Aditya, and was present before this Hon'ble Court
during the Cross-examination of accused no.2 and
DW-2.
7. It is submitted that Sh. Navneet Singh, Advocate, is
aware of the various cases filed by the complainant
against other person(s), which when brought before
this Hon'ble Court, the same would confirm that the
complainant is in a habit of filling various false and
frivolous cases against innocent persons through
himself or through his friends and relatives, who are
also represented by same advocate. It is further
submitted that Sh. Sandeep Arya, being a layman was
not in a position to give details of the various cases
filed by the complainant through himself or his friends
and relatives, whereas the said details can be given by
Sh. Navneet Singh, Advocate, who has privy to such
details and information.
8. It is further submitted that Sh. Aditya- is also
another victim of the complainant and therefore is in a
position to bring forth this Hon'ble Court the actual
persona of the complainant and his methods and
tactics in filling false and frivolous cases against
innocent person( s) including the accused, Sandeep
Arya and Mr. Aditya etc.
9. It is submitted that in view of the above and in view
of the deposition of Sh. Sandeep Arya bringing forth
the name of Mr. Navneet Singh, Advocate and Mr.
Aditya, pertaining to their knowledge of the
complainant and the various cases filed by him and his
friends and relatives against innocent persons, it is
now important, trite, necessary and pertinent and also
for the proper adjudication of the present case to bring
out the truth, that, the following witnesses be
summoned or allowed to be brought by the accused to
depose before this Hon'ble Court in the interest of
justice:
A. Mr. Navneet Singh, Advocate, Chamber No.461,
Western Wing,Tis Hazari Courts, Delhi-110054.
B. Mr. Aditya Singh. "
9. The said application has been rejected by the order impugned herein
on the ground that the examination of these witnesses is not relevant for the
purposes of proving offences under Section 138 of the NI Act. It is this order
which is being challenged by the Petitioners in the present petition.
10. Learned Counsel for the Petitioner states that the
Respondent/Complainant is in the habit of filing false and frivolous cases
against various persons and therefore examination of these witnesses is
necessary.
11. Section 138 of the NI Act creates an offence against a person who had
issued a cheque for repayment of debt or other liability and if that cheque
gets dishonoured for insufficient funds or the cheque is returned either
because of the money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount to be paid from that account
by an agreement made with that bank. The proviso to Section 138 of the NI
Act lays down the conditions before Section 138 of the NI Act is instituted.
Section 138 of the NI Act reads as under:-
"138. Dishonour of cheque for insufficiency, etc., of
funds in the account.--Where any cheque drawn by a
person on an account maintained by him with a banker
for payment of any amount of money to another person
from out of that account for the discharge, in whole or
in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of money
standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement
made with that bank, such person shall be deemed to
have committed an offence and shall, without prejudice
to any other provision of this Act, be punished with
imprisonment for a term which may extend to 68[two]
years, or with fine which may extend to twice the
amount of the cheque, or with both:
Provided that nothing contained in this section shall
apply unless--
(a) the cheque has been presented to the bank within a
period of six months* from the date on which it is
drawn or within the period of its validity, whichever is
earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment of
the said amount of money by giving a notice in writing,
to the drawer of the cheque, 69[within thirty days] of
the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee or
as the case may be, to the holder in due course of the
cheque within fifteen days of the receipt of the said
notice.
Explanation.--For the purposes of this section, "debt
or other liability" means a legally enforceable debt or
other liability."
12. A perusal of the application under Section 311 CrPC does not indicate
that these two witnesses are necessary for the purposes of the complaint
under Section 138 of the NI Act.
13. It is not the case of the Petitioner that these witnesses would depose as
to the existence of a loan or that the cheque was given as a security. These
witnesses cannot depose regarding the conditions which are sine qua non for
registering a case under Section 138 of the NI Act. The purport for
application under Section 311 CrPC is that the Court can call witnesses or
can call for documents which are necessary for the ends of justice. The fact
that the Complainant is in the habit of filing repeated cases under Section
138 of the NI Act is immaterial for the purpose of an offence under Section
138 of the NI Act. If all the ingredients are satisfied and if the cheque has
been given for satisfying the debt, then it does not matter if the Complainant
have filed several cases under Section 138 of the NI Act. Filing of the
frivolous applications will not delay the trial which appears to be the motive
of the Petitioner.
14. In view of the above, the view taken by the Court below that the
examination of the witnesses mentioned in the application have no relation
to the matter at hand does not require interference.
15. The petition is dismissed along with pending application(s), if any.
SUBRAMONIUM PRASAD, J
SEPTEMBER 27, 2024
hsk
