M/S Felix Infotech Private Limited And ... vs M/S Brightstar Telecommunications ...
2024 Latest Caselaw 19324 P&H

Punjab-Haryana High Court

M/S Felix Infotech Private Limited And ... vs M/S Brightstar Telecommunications ... on 4 November, 2024

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                Neutral Citation No:=2024:PHHC:155393




  HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
                                   ****
                       CRM-M-54155-2021 (O&M)
                           Reserved on 05.08.2024
                          Pronounced on 04.11.2024
                                   ****
M/s Felix Infotech P.Ltd. & Ors.                   ... Petitioners

                                        VS.

M/s Brightstar Telecommunications India Ltd. & Anr. ... Respondents
                                  ****
CORAM: HON'BLE MR.JUSTICE SANDEEP MOUDGIL
                                  ****
Present:    Mr. Gorav Kathuria, Advocate for the petitioners

          Mr. KP Singh, Advocate for respondent No.1
                               ****
Sandeep Moudgil, J. (Oral)

(1). This is a petition under Section 482 Cr.P.C. for quashing of the

complaint bearing NACT No.18510 of 2020 (Annexure P3) under Sections

138/142 of Negotiable Instruments Act, 1881 (in short, the 1881 Act) by

respondent No.1/complainant which is pending before JMIC, Gurugram as

well as for quashing the summoning order dated 29.01.2021 (Annexure P5)

passed by JMIC, Gurugram.

(2). Learned counsel for the petitioners contends that the JMIC,

Gurugram has proceeded to summon them without adverting to Section 202

CrPC as all the petitioners are residing outside the jurisdictional limit of

Gurugram and as such, the summoning order dated 29.01.2021 issuing

process without holding an enquiry in violation to the provisions under

Section 202 CrPC.

(3). It is vehemently argued that the petitioner-Company, namely,

M/s Felix Infotech P.Ltd. has already made all the payments to the respondent

No.1 against the alleged dishonoured cheques and in fact, an excess amount

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of Rs.5,54,226/- has been paid by the petitioner-company to respondent

No.1/complainant and therefore, the proceedings under Section 138/141 of

the NI Act is bad and abuse of process of law.

(4). Another argument raised on behalf of the petitioners is that the

respondent No.1 failed to comply with the mandatory requirements as

provided under Section 138 of NI Act inasmuch as the legal notice ought to

have been issued within one month from the date of receipt of cheque return

memo which has not been done by respondent No.1 therefore, the entire

complaint proceedings is barred by limitation and thus not maintainable.

(5). On the other hand, reply dated 05.03.2022 has been filed by

Manish Kumar Sharma, Manager Legal of respondent No.1-company who

has been duly authorized to file reply vide Board Resolution dated

01.03.2021 (Annexure R1). It is submitted in the reply that the present

petition filed by the petitioners is not maintainable despite having an

alternative remedy before the trial court. That apart, the petitioners have

distorted and concealed the material facts as they have sought bail and have

chosen not to participate in the trial proceedings.

(6). Learned counsel for the respondent No.1 submits that its

company, namely, M/s Brightstar Telecommunications India Ltd. had

supplied goods to the petitioner-company vide purchase orders dated

08.11.2019 and for that purpose, the petitioners had issued six cheques and at

the time when these cheques were presented before the Bank and were

returned dishonoured, the outstanding liability against the petitioners was

Rs.4,30,17,826.74.

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(7). It is averred in the reply that the petitioners have cooked up a

story of fictitious payments against the five cheques in question and as on

date of return memo i.e. 28.05.2021, the payments against Invoices

No.RV1933810072, RV1933810173, RV1933810602 and RV1933810603

are outstanding and that no payment has been made by the petitioners after

18.11.2021 to respondent No.1. Reference has been made to an email dated

18.11.2021 (Annexure R3) addressed to [email protected] giving

details of the outstanding amount against the petitioner-company which fact

also has been kept concealed from this Court.

(8). Learned counsel refuted the argument raised by the petitioners

that the complaint filed by the respondent No.1 is time barred as statutory

notice period of 30 days has been complied with. He submits that the

Supreme Court in Re.Cognisance for extension of limitation bearing no Suo

Motu (Civil) No.3 of 2020 from time to time have issued directions to

alleviate the difficulties being faced by the litigants and since the respondent

No.1 was functioning in a limited manner virtually till 16.08.2020, as such, it

had resumed limited physical functioning of head office in Gurugram from

17.08.2020 only. He further urged that it is settled law that the provisions of

Section 202 CrPC is inapplicable to complaints under Section 138 of NI Act

in respect of examination of witnesses on oath.

(9). Heard learned counsel for the parties and gone through the

record.

(10). Admittedly, the petitioners had business and financial

transactions with respondent No.1 in pursuance to the purchase order No.41

dated 15.11.2019 and Purchase Order No.42 dated 08.11.2019 and the

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payment against such orders was required to be made by the petitioners

within 90 days from the date of invoice. There is no dispute as to delivery

and receipt of products inter se parties.

(11). The petitioners have placed on record bank account ledger of the

company dated 01.04.2018 to 31.10.2021 (Annexure P6) and bank statement

(Annexure P7) showing the payments made by the petitioners to respondent

No.1. The petitioners have also, in para 12 of the petition, have tabulated the

details in the form of statement of payment made against cheques given to

respondent No.1 but were dishonoured by the Bank and in terms thereof, the

total value of dishonored cheques is Rs.2,73,52,7708/- and the total payment

made by the petitioners against such dishonoured cheques is shown to be

Rs.2,79,06,996/- and that being so, the petitioners have in fact made excess

payment of Rs.5,54,226/- to respondent No.1.

(12). On the contrary, the respondent No.1 have their own story to

counter the assertion made by the petitioners. It is their case that the payments

depicted by the petitioners are fictitious payments and are not related to the

complaint lodged by respondent No.1 and in fact, the respondent No.1 has

adjusted the payments and has also duly informed the petitioners. The

account credits in lieu of payments and credit note in respect of the

petitioners issued to the tune of Rs.2,84,18,680/- is stated to have been

adjusted against the invoices and the total amount credited in lieu of payment

and credit note after issuance of balance confirmation is Rs.2,29,06,996/- as

on 31.03.2020. He further urged that the principal outstanding as on

18.11.2021 was Rs.2,01,22,783 and the outstanding with interest was

Rs.2,99,17,745/- against which no payment has been made by the petitioners

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after 18.11.2021 to respondent No.1. The respondent No.1 has also, in para 5

of the reply, given the details of the outstanding liability against 6 invoices

issued against purchase orders No.41 & 42 which is reproduced as under:-

S.No. Invoice Number & Due date Invoice Cheque Cheque Reason for Amount No. Amount dishonor (A) (B) (C) (D) (E) 1 RV19278115 having due date 2,12,54,718 773192 2,12,54,718 Stale 16.11.2019 2 RV1933810072 having due date 79,67,436 265812 79,67,436 Payment stopped 27.11.2019 by Drawer 3 RV1933810173 having due date 3380124 265828 33,80,124 Payment stopped 28.11.2019 by Drawer 4 RV1933810412 having due date 4008293 265826 40,08,293 Payment stopped 30.11.2019 by Drawer

5 RV1933810603 having due date 8037774 265841 30,37,774 Payment stopped 04.12.2019 by Drawer 6 RV1933810602 having due date 3887143 265840 38,87,143 Payment stopped 04.12.2019 by Drawer

(13). It is also the case of respondent No.1 that period of limitation, as

has been urged on behalf of the petitioner, was extended during lockdown by

the Supreme Court. Respondent No.1 is stated to have been functioning in a

limited virtual manner till 16th August, 2020 in compliance to Government of

India advisories issued from time to time and as such, prior to its operation in

'work from home', the respondent No.1 resumed limited physical functioning

of its head office at Gurugram w.e.f. 17.08.2020 and therefore, the statutory

demand notice dated 12.08.2020 as well as the complaint was well timeline

prescribed by the Government.

(14). From the facts adumbrated above, it appears that the petitioners,

as claimed, issued only post-dated cheques to the respondent No.1 and

therefore, no liability on the part of the petitioners under Sections 138,

141/142 of NI Act was attracted towards them. Moreover, the petitioner-

company has made all the payments to respondent No.1 against the alleged

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dishonoured cheques as per the statement of payment relied upon by the

petitioners which shows that the petitioners have in fact made excess payment

of Rs.5,54,226/- to respondent No.1. On the other hand, it is the counter-

assertion of the respondent No.1 that as on date, the payments against the

dishonoured cheques are still outstanding and as such there is legally

recoverable debt to the tune of Rs.4,30,17,827/- to be discharged by the

petitioners. In nutshell, the contention of the petitioners is that even though

the debt of the respondent No.1-complainant has been paid/adjusted still the

respondent No.1-complainant has used the post-dated cheques issued by the

petitioners to their disadvantage. The relevant extract of payment made by the

petitioners in the shape of RTGS against the dishonoured cheques to the

respondent No.1 is reproduced hereunder:-

S. Cheque Cheque Amount S. Paid on Bank Ref. Amount No. No. Date No. 1 265828 29.02.2020 33,80,124 a. 19.03.20 RTGS- 15,00,000 HDFCR52020031975014220 2 265826 29.02.2020 40,80,293 NEFT-HDFC- 20,00,000 NO86201103254539 74,60,417 NEFT-HDFC- 15,00,000 NO87201103825425 NEFT-HDFC- 24,60,417 NO209201196671494 74,60,417

S.No. Cheque Cheque Amount S.No. Paid on Bank Ref. Amount No. Date 1 265840 05.03.2020 38,87,143 a. 25.08.20 RTGS- 38,87,143 HDFCR52020082594168970 38,87,143 38,87,143

S.No. Cheque Cheque Amount S.No. Paid on Bank Ref. Amount No. Date 1 265812 28.02.2020 79,67,436 a. 24.09.20 RTGS- 50,00,000 HDFCR52020092499051291 b. 06.10.20 RTGS- 29,67,436 HDFCR52020100650817163 79,67,436

79,67,436

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S.No. Cheque Cheque Amount S.No. Paid on Bank Ref. Amount No. Date 1 265841 05.03.2020 80,37,774 a. 09.10.20 NEFT-HDFC- 20,00,000 N283201270304351 b. NEFT-HDFC- 15,00,000 N297201284996018 80,37,774 c. Credit Note dated 30/10/20 10,92,000 100033358 d. NEFT-HDFC- 15,00,000 N31220130661725 e. DD No. 018999-HDFC 25,00,000 85,92,000

(15). A perusal of the above tabulated chart of payments made by the

petitioners through RTGS/NEFT/Credit Note etc. would show that the total

value of cheque which is said to have been dishonoured was Rs.2,73,52,770/-

whereas a sum of Rs.2,79,06,996/- were transferred in the account of the

respondent No.1 and instead a sum of Rs.5,54,226/- were transferred in

excess to the debt liability as alleged by respondent No.1. It also culls out

that the six cheques issued are of dated 19.02.2020 to 05.03.2020 and the

payments made by the petitioners to respondent No.1 are during the period

from March, 2020 to October, 2021. The demand notice was got issued by

respondent No.1 on 12.08.2020 meaning thereby that there existed financial

transaction inter se parties during the period demand notice was raised by

respondent No.1.

(16). In fact, it is the case of the petitioners that it was on the

insistence of the respondent No.1, that post-dated cheques were issued and

that apart, the respondent No.1 failed to discharge their part of the contract in

delivering goods within the specified time-frame. Vide letter dated

17.02.2020, the petitioners requested respondent No.1 not to deposit the

unfilled post-dated cheques but the same was filled by respondent No.1 and

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presented in the Bank intentionally despite having received the amount in

toto.

(17). The accused in a trial under Section 138 of the Act has two

options. He can either show that consideration and debt did not exist or that

under the particular circumstances of the case the non-existence of

consideration and debt is so probable that a prudent man ought to suppose

that no consideration and debt existed. To rebut the statutory presumptions an

accused is not expected to prove his defence beyond reasonable doubt as is

expected of the complainant in a criminal trial. The accused may adduce

direct evidence to prove that the note in question was not supported by

consideration and that there was no debt or liability to be discharged by him.

However, the court need not insist in every case that the accused should

disprove the non-existence of consideration and debt by leading direct

evidence because the existence of negative evidence is neither possible nor

contemplated.

(18). To disprove the presumptions, the accused should bring on

record such facts and circumstances, upon consideration of which, the court

may either believe that the consideration and debt did not exist or their non-

existence was so probable that a prudent man would under the circumstances

of the case, act upon the plea that they did not exist. Apart from adducing

direct evidence to prove that the note in question was not supported by

consideration or that he had not incurred any debt or liability, the accused

may also rely upon circumstantial evidence and if the circumstances so relied

upon are compelling, the burden may likewise shift again on to the

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complainant. This view of mine is supported from the judgment of the Apex

Court rendered in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513.

(19). In the present case, the petitioner-accused has made averments

that the payments stood paid in the account of the respondent No.1 and in

support thereof, he appended bank account ledger dated 01.04.2018 to

31.10.2021 (Annexure P6) showing the payments made to respondent No.1

and the bank statement (Annexure P7) to aver that the debt liability against

the dishonoured cheques were duly discharged by the petitioner.

(20). In such circumstances, no sufficient grounds are made out to

proceed against the petitioners under Section 138 and Section 141 of the NI

Act and therefore, the observation made by the trial court are bad and

erroneous in law.

(21). Accordingly, this petition is allowed and the complaint bearing

NACT No.18510 of 2020 (Annexure P3) under Sections 138/142 of the NI

Act by respondent No.1/complainant which is pending before JMIC,

Gurugram as well as the summoning order dated 29.01.2021 (Annexure P5)

passed by JMIC, Gurugram are hereby quashed.

04.11.2024 (Sandeep Moudgil) V.Vishal Judge

1. Whether speaking/reasoned? Yes/No

2. Whether reportable? Yes/No

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