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TMI Blog2019 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and thus in terms of the verdict of the Hon’ble Supreme Court in K.K.Ahuja (Supra) para 27(iv), adverted to elsewhere herein above, it is apparent that the petitioner No.3 has also rightly been arrayed as an accused in the instant case. Though the aspect of the respondent No.3 having not been in control and in charge of the petitioner No. 1 company can always be put forth by the petitioner No.3 after putting her defence and can be so contended before the learned Trial Court at the stage of analysis of evidence that is led by either side. It is further essential to observe that it has been laid down by the Hon’ble Supreme Court in MSR Leathers v. Palaniappan and another [2012 (10) TMI 232 - SUPREME COURT ] that a prosecution based on a second or successive default in payment of the cheque amount is not impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay and had not been launched. It is not considered appropriate to exercise jurisdiction under Section 482 of the Cr.PC, in as much as there is no infirmity in the impugned order dated 1.6.2015 of the learned Trial Court, MM (N.I.Act) South-East, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the complainant is the national distributor of the HTC mobile handsets within the territories of Delhi and imports HTC mobile handsets directly from the company's headquarter in Taiwan. In the course of its normal business complainant appoints further redistributors/stockists (RDS) to promote sale of the said brand in Delhi and elsewhere. 3.That Shri Gautam Mullick is the authorized signatory of the complainant Company having been duly authorized by virtue of Board Resolution dated 18.3.2015 having authority to sign, verify and institute the present complaint. Shri Gautam Mullick, even otherwise, is also well conversant with the facts and circumstances of the present case and therefore duly authorized to institute, prosecute the present complaint on behalf of the complainant Company. 4.That the accused no. 1 a Private Limited Company having its office at the address mentioned hereinabove and running the business concern from the aforesaid address. Accused no. 1 through accused nos. 2 and 3, represented themselves to be engaged in the business of selling mobile handsets and other related products. 5.That the accused nos. 2 and 3 represented yourself to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G/000999/2014-15 dated 29.1.2015 for an amount of ₹ 1,00,37,498/- (Rupees One Crore Thirty Seven Thousand Four Hundred Ninety Eight only) towards the 550 HTC Desire 820 Q Grey/Blue mobile handsets and another Tax Invoice No. SlGURG/001007/2014-15 dated 31.1.2015 for an amount of ₹ 27,37,499/- (Rupees Twenty Seven Lacs Thirty Seven Thousand Four Hundred Ninety Nine only) towards the 150 HTC Desire 820 Q White/Blue mobile handsets supplied by complainant Company to accused persons and the same was also duly acknowledged. 11. That out of the aforementioned amount of ₹ 1,27,75,000/- (Rupees One Crore Twenty Seven Lacs Seventy Five Thousand only) the accused persons had already made a part payment of ₹ 30,00,000/- (Rupees Thirty Lacs only) to complainant Company and further assured that the remaining balance of ₹ 97,75,000/- (Rupees Ninety Seven Lacs Seventy Five Thousand only) will be paid by the accused persons to complainant Company as early as possible according to Tax Invoices. 12. That as per account duly maintained by complainant Company there is an outstanding balance of ₹ 97,75,000/- (Rupees Ninety Seven Lacs Seventy Five Thousand o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the cheques mentioned in para 15 at sl. nos. 1 to 6, when presented for clearance by eomplainant Company to its banker, State Bank of India, South Ext. Part-I, New Delhi - 110049, within the statutory period; was returned back unpaid containing the remark Payment Stopped By Drawer . 18.It is evident that the accused persons never harboured any intention to pay the complainant Company and have dishonestly and intentionally withheld the dues in order to achieve their otherwise malafide intention and deceitful designs. That the said dishonor of the cheques were under the knowledge of the accused persons and the same was also informed by complainant Company to the accused persons. 19. That you the accused nos. 2 and 3 on behalf of accused no. 1, again given the assurance and promise that the accused have made proper arrangements of the funds in the bank account and requested complainant Company to present the cheques in question for the second time for clearance. On the request and instructions of the accused persons, the complainant Company has presented the said cheques in question to its banker namely State Bank of India, South Ext. Part-I, New Delhi - 110049, for cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n those circumstances committed an offence as contemplated under Chapter XVII of the N.I. Act, 1881, as amended from time to time and therefore, held yourself liable to action in that behalf. 22. The above dishonor of the said cheques is in direct contravention of the promises and assurances made by the accused persons to the complainant Company assuring due encashment of the aforesaid cheques upon presentation for the second time also. 23. That within a period of 30 (thirty) days of the receipt of information from its banker that the said cheques have been returned unpaid due to above mentioned remarks. the complainant Company sent a legal Notice dated 17.4.2015 through registered post on 17.4.2015 at the aforementioned address of the accused persons demanding payment of the dishonoured cheques within 15 (fifteen) days of the receipt of the notice. That the said notice was sufficiently stamped Registered AD and sent at the last known correct addresses of the accused persons and same is duly served upon the accused persons. 24. That despite the service of the legal notice as aforesaid, the accused persons have not made payment of the cheques-in-question to the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No.2 on behalf of the company would give rise to the responsibilities under Section 141(2) of the Negotiable Instruments Act, 1881. 9. It was also submitted on behalf of the respondent that the averments in the complaint that the Directors, other than the director who signed the cheque in question on behalf of the plaintiff i.e. the petitioner No.1 company, would be liable to face the prosecution without an averment being made in a complaint that such director was in-charge and was responsible to the company for the conduct of the business of the company would suffice as petitioners No.2 and 3 in the present petition are in any event Directors of the petitioner No.1 since 1986 till date and as also indicated from the website of the Ministry of Corporate Affairs. 10. It was also submitted on behalf of the respondent that the issue in respect to the involvement of the petitioner No.3 has been erroneously raised in as much as the issue in relation to the issuance of cheques and the dishonor of cheques was a disputed question of fact which needs to be adjudicated upon by the learned Trial Court on the basis of evidence. 11. Through the written synopsis on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s committed without his knowledge or that he had exercised all due diligence to prevent the to commission of such offence. 17. As laid down by the Hon ble Supreme Court in K.K.Ahuja (supra) while summarizing the Section 141 of Negotiable Instruments Act, 1881 it has been observed to the effect: 20. The position under section 141 of the Act can be summarized thus : (i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix `Managing' to the word `Director' makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achable evidence or acceptable circumstances which can lead to the conclusion that the petitioner No.3 could not have been in charge or responsible for the conduct of the business at the relevant time and that making her stand the trial would be an abuse of the process of Court as no offence was made out against her. The same undoubtedly is a matter of evidence and the petitioner No.3 can undoubtedly lead her defence in relation thereto. 21. As regards the contention raised on behalf of the petitioner herein that in relation to the six cheques adverted to herein above, there was only one criminal complaint that had been filed i.e. CC No. 1529/2015 out of which the impugned order arises, in relation thereto it is essential to observe in as much as it was laid down by this Court in Sharma Contracts India Pvt. Ltd. V. State Anr. (2012) SCC Online Delhi 310 vide para 11 to the effect 11. The purport of the above provision is that where a person is accused of more than one offence of the same kind committed within the space of twelve months he can be charged and tried at one trial for, any number of them not exceeding three. The stage for determining whether there should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the cheques through given on different dates, were presented on one particular date as requested by the accused, and, therefore, one offence must be deemed to have been committed in respect of the single transaction. It was further held that acts of giving the cheques were merged together to form the same transaction. Therefore, the accused should be charged and tried at one trial for such an offence. It was, however, held that even otherwise Section 220(1) of the Cr. P. Code permits for such a single trial. I am inclined to adopt the same view taken by the Madras High Court. Consequently, it will have to be held that the challenge given by the petitioners in this petition cannot be sustained. The learned Magistrate must be held to be right in holding that the petitioners can be tried at a single trial for the dishonour of all the 27 cheques. , in which case it was held that the petitioner of that case could be tried on a single trial for dishonour of all the 27 cheques. Since the contention of the respondent herein is that all the six cheques which form the subject matter of the complaint case No. 1529/2015 have been given in relation to the same transaction, it is appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to negotiate a possible settlement without prejudice to the right of holder to institute proceedings within the outer period of limitation stipulated by law should be avoided we see no reason why the parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if cheque amount is paid by the drawer. The Magistracy in this country is overburdened by an avalanche of cases under Section 138 of the Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan case [(1998) 6 SCC 514 : 1998 SCC (Cri) 1471] result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing the parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened Magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was any insufficiency of funds in the accounts of the petitioners and thus the ingredients of Section 138 of the Negotiable Instruments Act, 1881 are not brought forth, it is essential to observe that it has also been laid down by the Hon ble Supreme Court in HMT Watches Ltd. vs. M.A. Abida and Anr. (2015) 11 SCC 776 , vide para 14 thereof to the effect: 14. Lastly, it is contended on behalf of Respondent 1 that it was not a case of insufficiency of fund, as such, ingredients of the offence punishable under Section 138 of the NI Act are not made out. We are not inclined to accept the contention of the learned counsel for Respondent 1. In this connection, it is sufficient to mention that in Pulsive Technologies (P) Ltd. v. State of Gujarat [Pulsive Technologies (P) Ltd. v. State of Gujarat, (2014) 13 SCC 18 : (2014) 5 SCC (Civ) 684 : (2014) 5 SCC (Cri) 511], this Court has already held that instruction of stop payment issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the NI Act. Earlier also in Modi Cements Ltd. v. Kuchil Kumar Nandi[Modi Cements Ltd. v. Kuchil Kumar Nandi, (1998) 3 SCC 249 : 1999 SCC (Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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