2022 (11) TMI 492 - HC - Indian Laws

Dishonor of Cheque - rebuttal of presumptions - compromise arrived at between the parties or not - Section 138 of NI Act - HELD THAT - Admittedly no compromise had been arrived at between the parties to the subject complaint. The submission of the learned counsel appearing on behalf of the petitioners that the cheques had been issued for the same invoices and therefore would give rise to the same cause of action is not tenable, in view of the fact that the cheques in both the complaints had allegedly been issued for discharge of liability, in part, arising out of the invoices relied upon by the respondent. It is for the petitioner to prove that the said cheques were not issued towards discharge, in whole or part, of any debt or liability. This court cannot go into factual issues which are not admitted between the parties. Moreover, it is settled law that the scope of enquiry in exercise of jurisdiction under Section 482 CrPC is limited. The court should be slow to grant relief at a pre-trial stage, before parties have had an opportunity to adduce evidence. This inherent jurisdiction must be exercised sparingly and with great circumspection. This Court finds no reason to interfere with the impugned judgment - petition dismissed.

Summary

Issues Involved:
1. Setting aside of the impugned judgment dated 07.07.2022.
2. Setting aside of the summoning order dated 28.01.2022.
3. Double jeopardy and maintainability of a second complaint on the same cause of action.
4. Liability of directors under Section 138 of the NI Act.

Issue-wise Detailed Analysis:

1. Setting aside of the impugned judgment dated 07.07.2022:
The petitioners sought to set aside the judgment of the Additional Sessions Judge dated 07.07.2022, which dismissed their revision petition against the summoning order for the offence under Section 138 of the NI Act. The petitioners argued that the judgment failed to appreciate the legal question regarding the maintainability of a second complaint on the same cause of action.

2. Setting aside of the summoning order dated 28.01.2022:
The summoning order dated 28.01.2022, issued by the Metropolitan Magistrate, summoned the petitioners for the offence under Section 138 NI Act. The court found that the statutory requirements under the NI Act were complied with and that a prima facie case was made out against the accused. The petitioners' revision petition against this order was partly allowed for some petitioners but dismissed for others, maintaining the summons for the company and its Managing Director.

3. Double jeopardy and maintainability of a second complaint on the same cause of action:
The petitioners argued that the second complaint on the same cause of action amounted to double jeopardy, violating Article 20(2) of the Constitution of India. They relied on the Supreme Court judgment in M/S Gimpex Private Limited v. Manoj Goel, which held that a complainant cannot pursue two parallel prosecutions for the same underlying transaction. However, the court distinguished the present case, noting no compromise had been reached between the parties, and the cheques in both complaints were issued for the discharge of liability in part. The court observed that bouncing of every cheque gives rise to a separate cause of action under Section 138 NI Act.

4. Liability of directors under Section 138 of the NI Act:
The Additional Sessions Judge found that the complainant did not aver that certain directors were in charge of or responsible for the conduct of the company's business, a requirement under Section 141 NI Act. Consequently, the summoning order against these directors was set aside. However, the Managing Director and the company were still held liable as the complaint sufficiently averred their responsibility for the company's affairs.

Conclusion:
The court dismissed the present petition, finding no reason to interfere with the impugned judgment dated 07.07.2022. It held that the petitioners' arguments regarding double jeopardy and the maintainability of a second complaint were not tenable. The court emphasized that the scope of inquiry under Section 482 CrPC is limited and should be exercised sparingly. The court did not express any opinion on the merits of the case pending before the trial court.