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TMI Blog2023 (11) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,00,000/-, cheque no. 069292 dated 15.01.2017 for Rs. 4,00,000/-, cheque no. 069293 dated 15.02.2017 for Rs. 4,00,000/- and cheque no. 069294 dated 15.03.2017 for Rs. 4,50,000/-, collectively for an amount of Rs. 16,50,000/, all drawn on Oriental Bank of Commerce, Old Rajinder Nagar Branch, Delhi. Upon immediate presentation of the first cheque, bearing no. 069291 dated 15.12.2016 for Rs. 4,00,000/- by the respondent, it was returned dishonoured for the reason "Payment Stopped". Thereafter, on the assurance of the petitioners, all the three remaining cheques were also presented by the respondent, but they too were returned dishonoured vide return memo dated 24.03.2017 with the same reason i.e., "Payment Stopped". In consequence thereof, a Legal Notice dated 17.04.2017 was issued by the respondent, however, since it was returned undelivered, the respondent proceeded to file a complaint against the petitioners for not honouring the instruments valued at Rs. 16,50,000/- before the learned MM. 3. After issuing summons to the petitioners on 30.05.2017, notice under Section 251 Cr.P.C. was framed qua petitioner no. 2 on 25.03.2019 by the learned MM. Thereafter, though the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject complaint was based only on the three subsequent cheques dishonoured on 24.03.2017 and since the Legal Notice was issued within the statutory time period and the subject complaint thereafter was also filed within the statutory period, the subject complaint is not barred by limitation. 8. Learned counsel for the respondent also submitted that even as per Section 219 CrPC, only three cheques could have been clubbed in a single complaint. 9. Learned counsel for the respondent further submitted that in any event, since the Legal Notice was never delivered to the petitioners, and it was only on the issuance of summons by the learned MM that the petitioners came to know of the present dispute, they cannot claim that the said Legal Notice was defective and caused misrepresentation. Thus, relying upon C.C. Alavi Haji v. Palapetty Muhammed & Anr. 2007(6) SCC 555, he submitted that in the absence of receipt of notice, the summons issued by the learned MM were to be considered as the statutory notice, and since in the present case, the same was only with respect to the three subsequent cheques, as is also evident from the notice under Section 251 CrPC issued to the petitioner no. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 15. Keeping the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r clearance and notice charges were also made, did not vitiate the notice. In a given case if the consolidated notice is found to provide sufficient information envisaged by the statutory provision and there was a specific demand for the payment of the sum covered by the cheque dishonoured, mere fact that it was a consolidated notice, and/or that further demands in addition to the statutorily envisaged demand were also found to have been made may not invalidate the same......" 18. Similarly, the Hon'ble Supreme Court in Rahul Builders (supra), considering the judgments mentioned hereinabove, has also once again reiterated the same and has held as under:- "10. Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is served in conformity with proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of a notice making demand of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused no. 2 Ravish Malhotra S/o Sh. Ramesh Kumar Malhotra Partner of the accused no. 1 aged 39 years, office at M/s. Samkia Enterprises, 32B, Main Pusa Road, New Delhi-110005 that in discharge of your legally enforceable debt towards the complainant Ranjeet Begwani, you had issued one cheque, First Cheque bearing no. 069292 dt. 15.01.2017 for Rs. 4,00,000/-, Second Cheque bearing no. 069293 dt. 15.02.2017 for Rs. 4,00,000/-, Third Cheque bearing no. 069294 dt. 15.03.2017 for Rs. 4,50,000/- said cheques were drawn one Oriental bank of Commerce in favour of the complainant which was returned unpaid for the reason "Payment Stopped by Drawer" vide cheque returning memo dated 24.03.2017 despite notice of demand dt. 17.04.2017 served upon you, you failed to make the payment of the said cheque amount within the stipulated time and thereby you committed an offence punishable under section 138 Negotiable Instrument Act, 1881 and within my cognizance. I hereby direct that you be tried by this Court on the above said notice." 21. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sen to approach this Court by way of the present petition under Section 482 CrPC instead of approaching the revisional Court by invoking the provisions of Section 397 CrPC also speaks of the conduct of the petitioners and does not bestow any confidence in their favour. 25. Considering the aforesaid, this Court finds that the reliance placed by the learned counsel for the petitioners upon the judgments cited are of no relevance and are in fact, of no assistance to them. 26. Considering the factual matrix involved and the legal position as it stands today, this Court has no hesitation in holding that the present petition seeking quashing of the Complaint Case being CT Case no. 3301/2017 titled as Ranjeet Begwani v. M/s Samkia Enterprises & Ors., filed by the respondent/complainant against the petitioners/ accused under Section 138 read with Section 141 of the NI Act, pending before the learned Metropolitan Magistrate (NI Act) West-04, Tis Hazari Courts, Delhi, is devoid of merit and deserves dismissal. 27. Accordingly, 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 Twen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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