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2023 (11) TMI 747 - HC - Indian LawsDishonour of Cheque - insufficient funds - clubbing of three cheques in a single complaint - Pre-summoning evidence - HELD THAT - Since it is settled law that the NI Act and the provisions therein, including that of Section 138 NI Act are pertaining to a Special Act, they have to be mandatorily complied with. As per the facts involved, though the first cheque issued on 15.12.2016 was dishonoured on 23.12.2016 and the Legal Notice dated 17.04.2017 qua it was barred by limitation, however, admittedly, since all the subsequent three cheques issued on 15.01.2017, 15.02.2017 and 15.03.2017 were dishonoured thereafter only on 24.03.2017, the same Legal Notice dated 17.04.2017 qua them was well within the prescribed statutory period. The said Legal Notice being valid, the subject complaint qua the said three cheques also being well within the statutory time period, is also very much valid. In the present case, as the Legal Notice dated 17.04.2017 issued by the respondent specifically entails the specific details qua the dates and amounts of all the respective four cheques involved, separately, there can be no dispute qua maintainability of the subject complaint qua them before the learned MM. The said Legal Notice dated 17.04.2017 issued by the respondent is to be read as a whole and not in piecemeal - as neither there is any omnibus demand made by the respondent in the Legal Notice issued within the stipulated time period, nor there is any illegal amount demanded by him, in the facts of the present case, the subject complaint is per se maintainable in the eyes of law. It is also worth noting that the learned MM vide order dated 30.05.2017 issued summons to the petitioners and then rightly framed notice under Section 251 CrPC dated 25.03.2019 to the petitioner no. 2 qua the said three cheques only. Not only that, as the pre-summoning evidence led by the respondent before the learned MM is also based only on the three subsequent cheques dishonoured on 24.03.2017, there is no occasion for this Court to interfere with the proceedings before the learned MM by allowing the present petition. The present petition alongwith the applications, if any, is dismissed and in view of the conduct of the petitioners, with a token costs of Rs. 25,000/- (Rupees Twenty Five Thousand Only) to be paid to the respondent within a period of two weeks.
Issues Involved:
1. Quashing of Complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. 2. Validity of Legal Notice under Section 138 NI Act. 3. Vicarious liability of petitioner no. 1 partnership firm and petitioner no. 3. 4. Timeliness and procedural propriety of the complaint and legal notice. 5. Allegations of forum shopping and delay tactics by the petitioners. Summary: 1. Quashing of Complaint: The petitioners sought quashing of Complaint Case No. 3301/2017 under Section 138 read with Section 141 of the NI Act, filed by the respondent before the learned Metropolitan Magistrate (NI Act) West-04, Tis Hazari Courts, Delhi. 2. Validity of Legal Notice: The petitioners argued that the Legal Notice was defective as it included a cheque (no. 069291) that was time-barred. However, the Court held that the Legal Notice dated 17.04.2017 was valid for the three subsequent cheques dishonoured on 24.03.2017. The Court emphasized that the Legal Notice should be read as a whole, not in piecemeal, and cited the Supreme Court's rulings in Suman Sethi v. Ajay K. Churiwal and K.R. Indira v. G. Adinarayana. 3. Vicarious Liability: The petitioners contended that the cheques were issued by petitioner no. 2 in his individual capacity and not on behalf of the partnership firm (petitioner no. 1), and that petitioner no. 3 was neither a signatory nor involved. The Court referred to Section(s) 18, 19, 25, and 26 of the Partnership Act, 1932, holding that the petitioners are jointly and severally liable for the dishonour of cheques. 4. Timeliness and Procedural Propriety: The Court noted that the Legal Notice dated 17.04.2017 was issued within the statutory period for the three cheques dishonoured on 24.03.2017. The petitioners' argument that they never received the Legal Notice was dismissed, as the summons issued by the learned MM were considered the statutory notice. The Court found no fault with the proceedings before the learned MM, including the issuance of summons and framing of notice under Section 251 CrPC. 5. Allegations of Forum Shopping and Delay Tactics: The Court criticized the petitioners for forum shopping by approaching the High Court under Section 482 CrPC instead of the revisional court under Section 397 CrPC. The Court also noted the petitioners' delay tactics, as they challenged the legality of the Legal Notice only after the issuance of summons and framing of notice under Section 251 CrPC. Conclusion: The Court dismissed the petition for quashing the complaint, finding it devoid of merit. The petitioners were ordered to pay Rs. 25,000/- as token costs to the respondent within two weeks and file a compliance report before the learned MM.
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