2017 (10) TMI 1235 - HC - Indian Laws

Offence punishable under Section 138 of the Negotiable Instruments Act - order passed in Criminal Complaint passed by the Metropolitan Magistrate by virtue of which the petitioners were summoned as accused - whether in presence of the final judgment and decree passed in Civil Suit of this Court, the impugned summoning order is bad in law? - Held NO The petitioners are invoking the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 to set aside the order dated 30th March, 2015 passed by the Metropolitan Magistrate, Saket District Court, New Delhi in Criminal Complaint whereby the application of the petitioners for stay of the proceedings under Section 138 of NI Act was dismissed ; to quash the Criminal Complaint and to set aside the order dated 13th December, 2010 passed by the Metropolitan Magistrate by virtue of which the petitioners were summoned as accused for offence punishable under Section 138 of the Negotiable Instruments Act. In the instant petition, the complaint under Section 138 read with Section 141 of the Negotiable Instruments Act was filed pertaining to dishonouring of the two cheques i.e. cheque no. 504080 dated 30.09.2010 of ₹ 4,35,00,000/- (Rupees Four Crores Thirty Five Lakhs Only) and second cheque no. 504081 dated 30.09.2010 of ₹ 97,69,266/- (Rupees Ninety Seven Lakhs Sixty Nine Thousand Two Hundred Sixty Six Only), which were dishonoured vide dishonor memo dated 15.10.2010 in respect of cheque no. 504080 and dishonor memo dated 16.10.2010 in respect to cheque no. 504081 with the remarks Funds Insufficient . Thereafter, the complainant/respondent issued two legal demand notices dated 26.10.2010 in respect of the two dishonoured cheques which was duly served upon the petitioners. The complainant/respondent at the same time also filed a Civil Suit (OS) No. 47 of 2011 for the recovery of ₹ 5,75,17,240/- before this Court and the same was decreed in favour of the present respondent on 19th March, 2013. The said decree was for a sum of ₹ 5,75,17,240/- with pendente lite interest @ 9% p.a. and future interest @ 15% p.a. Since the judgment and decree in the Civil Suit (OS) No. 47 of 2011 has attained finality between the same parties with respect to the same transaction and the counsel for the petitioner has not argued the case on merit as observed in order dated 27.03.2017 before this Court, the plea taken by the petitioners in the present case loses significance and this Court finds no merit to interfere with the impugned summoning order dated 13th December, 2010 and with the impugned order dated 30th March, 2015 passed by the Metropolitan Magistrate, South East, Saket Court in Criminal Complaint No. 2492 of 2015. 28. Consequently, the present petition is dismissed and disposed of accordingly. All the pending application(s), if any are also disposed of. One copy of this judgment be sent to the concerned Court(s).

Summary

Issues Involved:
1. Invocation of inherent jurisdiction under Section 482 of Cr.P.C.
2. Dismissal of application for stay of proceedings under Section 138 of NI Act.
3. Quashing of Criminal Complaint and summoning order.
4. Simultaneous civil and criminal proceedings.

Issue-wise Detailed Analysis:

1. Invocation of inherent jurisdiction under Section 482 of Cr.P.C.:
The petitioners sought to invoke the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973, to set aside the order dated 30th March 2015 passed by the Metropolitan Magistrate, Saket District Court, New Delhi, in Criminal Complaint No. 2492 of 2015. They also sought to quash the Criminal Complaint No. 2492 of 2015 and the summoning order dated 13th December 2010, which summoned the petitioners as accused for an offence punishable under Section 138 of the Negotiable Instruments Act.

2. Dismissal of application for stay of proceedings under Section 138 of NI Act:
The petitioners had filed an application under Section 309 of Cr.P.C. for adjournment/stay of the proceedings under Section 138 of NI Act, which was dismissed by the Metropolitan Magistrate on 30th March 2015. The Magistrate observed that the case had been filed in 2010, and the accused had not raised the defense of being unable to make the payment due to restraining orders from various courts during the framing of the notice or in their statement under Section 313 Cr.P.C. The defense surfaced only in the application moved for adjournment, appearing to be an afterthought intended to delay the case.

3. Quashing of Criminal Complaint and summoning order:
The petitioners challenged the summoning order dated 13th December 2010 and the order dated 30th March 2015. The court noted that the complaint under Section 138 read with Section 141 of the NI Act was filed due to the dishonoring of two cheques, which were presented for payment but returned with the remark "Funds Insufficient." Legal demand notices were issued and served upon the petitioners, but they failed to make the payment, leading to the filing of the complaint.

4. Simultaneous civil and criminal proceedings:
The court addressed whether the final judgment and decree passed in Civil Suit (OS) No. 47 of 2011 affected the criminal proceedings. The Supreme Court in P. Swaroopa Rani v. M. Hari Narayana and Vishnu Dutt Sharma v. Smt. Daya Sapra held that civil and criminal proceedings could run simultaneously. The judgment and decree in the civil suit had attained finality, and the petitioners' plea in the criminal case lost significance. The court found no merit in interfering with the summoning order and the order dismissing the application for stay.

Conclusion:
The High Court dismissed the petition, upholding the orders of the Metropolitan Magistrate. The court emphasized that both civil and criminal proceedings could proceed in parallel, and the petitioners' arguments did not warrant quashing the criminal complaint or the summoning order. The judgment affirmed the principle that the existence of a civil decree does not preclude criminal proceedings under the NI Act.