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2024 (7) TMI 263 - HC - Indian LawsDishonour of Cheque - mainatinability of petition - delay and laches as also for the failure of the petitioners to avail of their alternate efficacious remedy in form of Revision Petitions under Section 397 of the Cr.P.C. - HELD THAT - There are merit in the submission made by the learned counsel for the Complainant that the present set of petitions is liable to be dismissed on the ground of delay and laches as also for the failure of the petitioners to avail of their alternate efficacious remedy in form of Revision Petitions under Section 397 of the Cr.P.C. It need not be emphasized that powers under Section 482 of the Cr.P.C. are discretionary in nature and though there may not be a total ban on the exercise of such power where the situation so warrants, at the same time, there are limitations of self-restraint that are recognized and followed by the Courts in exercising this jurisdiction. One such limitation is where the petitioner had an alternate efficacious remedy, however, did not avail of the same within the period of limitation and thereafter filed the petition under Section 482 of the Cr.P.C. to overcome the objection of limitation. In Prabhu Chawla 2016 (9) TMI 1595 - SUPREME COURT , the Supreme Court quoted with approval its earlier judgment in Madhu Limaye 1977 (10) TMI 111 - SUPREME COURT , wherein it had been held that though availability of an alternate efficacious remedy of a Revision under Section 397 of the Cr.P.C. does not affect the amplitude of the inherent power under Section 482 of the Cr.P.C. that the High Court possesses, at the same time, easy resort to inherent power is not to be allowed except under compelling circumstances; it should not invade areas set apart for specific power under the Cr.P.C. itself. It was held that while it is true that Section 482 of the Cr.P.C. is pervasive, it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397 (2) of the Cr.P.C. Clearly, the petitioners have let the water flow and the proceedings to continue and it is only when the complaint cases have reached the stage of recording of the Complainant s evidence that they woke up from their slumber to file the present petitions and challenge the maintainability of the same. The petitions are, therefore, liable to be dismissed not only on account of inordinate delay and laches, but also on account of the petitioners not availing of their alternate efficacious remedy in the form of Revision Petition, but instead filing these petitions much beyond the period of limitation and with delay that would have haunted them had they filed the Revision Petitions. There are no reason to interfere in the complaint cases in exercise of powers under Section 482 Cr.P.C - there are no merit in the challenge of the petitioners to the Complaints or to the Impugned Orders - petition dismissed.
Issues Involved:
1. Quashing of Complaints under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. 2. Delay and laches in filing petitions under Section 482 of the Cr.P.C. 3. Availability of alternate remedy under Section 397 of the Cr.P.C. 4. Compliance with the Share Subscription and Shareholders Agreement (SSSA) notice requirements. 5. Liability of petitioners as signatories and directors. 6. Presentation of multiple cheques exceeding the liability. 7. Impact of resignation from directorship on liability under Section 138 of the NI Act. 8. Concurrent criminal proceedings and double jeopardy. Detailed Analysis: 1. Quashing of Complaints under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881: The petitions sought quashing of complaints filed under Section 138 read with Section 142 of the NI Act, related to dishonoured cheques issued by the petitioners. The complaints were based on alleged non-compliance with a Share Subscription and Shareholders Agreement (SSSA) and subsequent dishonour of cheques issued by the petitioners. The court found that the complaints were maintainable as the issues raised by the petitioners involved disputed questions of fact, which should be adjudicated by the trial court after evidence is led by both parties. 2. Delay and Laches in Filing Petitions under Section 482 of the Cr.P.C.: The court dismissed the petitions on the ground of delay and laches. Summons were issued in 2013, and the complaints were transferred and re-transferred multiple times. The petitioners did not challenge the maintainability of the complaints or the summoning orders promptly and only filed the present petitions after significant delay. The court emphasized that petitions under Section 482 of the Cr.P.C. should not be entertained if filed with unexplained delay and laches. 3. Availability of Alternate Remedy under Section 397 of the Cr.P.C.: The court noted that the petitioners had an alternate efficacious remedy in the form of revision petitions under Section 397 of the Cr.P.C., which they did not avail within the period of limitation. The court cited precedents to emphasize that easy resort to inherent power under Section 482 of the Cr.P.C. should not be allowed except under compelling circumstances. 4. Compliance with the Share Subscription and Shareholders Agreement (SSSA) Notice Requirements: The petitioners argued that the complainant did not comply with the notice requirements under Clause 4.2 read with Clause 18.2 of the SSSA. The court found that the notice dated 04.10.2012 was issued before the expiry of 27 months from the effective date of the SSSA. The court held that the effect of Clause 18.2, which introduces a deeming fiction for the service/delivery of notice, should be considered by the trial court after hearing the parties and considering their evidence. 5. Liability of Petitioners as Signatories and Directors: The petitioners contended that they had resigned from their directorship before the presentation of the cheques. The court held that resignation from directorship does not absolve the petitioners of their liabilities under Section 138 of the NI Act, especially as they were signatories of the cheques and described as directors and promoters in the SSSA and related documents. 6. Presentation of Multiple Cheques Exceeding the Liability: The petitioners argued that the complainant presented both sets of cheques (personal and company) for encashment, exceeding the liability. The court held that the total liability owed by the petitioners in terms of the SSSA surpassed the amounts mentioned in the cheques, and this issue should be determined by the trial court. 7. Impact of Resignation from Directorship on Liability under Section 138 of the NI Act: The court cited precedents to hold that any person who was in charge of or in control of the affairs of the company when the acts of commission and omission essential to complete the offence were committed is liable to be prosecuted. The petitioners' resignation from directorship does not absolve them of their liability under Section 138 of the NI Act. 8. Concurrent Criminal Proceedings and Double Jeopardy: The petitioners argued that concurrent criminal proceedings (FIR) on the same cause of action should lead to a stay of the complaint proceedings. The court found no merit in this argument, noting that the FIR was for other fraudulent acts and not for the dishonour of cheques. The court held that these matters should be considered by the trial court. Conclusion: The court dismissed the petitions along with the pending applications, finding no merit in the challenge to the complaints or the impugned orders. The court requested the trial court to expedite the adjudication of the complaint cases and dispose of them within six months of the first listing post the present judgment.
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