TaxTMI 
TaxTMI 
2022 (11) TMI 492
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.... summoned for the offence punishable under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act'). 2. The relevant facts for the purpose of adjudication of present petition are as follows:- A) The respondent herein supplied consignments to petitioner no. 1 between 26.06.2020 and 03.10.2020 and raised invoices with respect to the same. Thereafter, petitioner no. 1 issued eleven cheques in the sum of Rs. 85,26,50.39/-, drawn on 'Woori Bank, 1st Floor, ABlock, Salcon Platina Building, DLF, Phase-1, Sikanderpur, M.G. Road, Sector - 28, Haryana - 122001; in favor of the respondent. On presentation, the said cheques returned unpaid. The respondent sent demand notice dated 06.01.2021 to the petitioners. The petitioners denied their liability vide letters dated 04.01.2021 and 15.01.2021. The petitioners disputed supply as well as the quality thereof. The respondent, thereafter, instituted a complaint under Section 138 of the NI Act being C.C. No. 2352/2021, the learned Metropolitan Magistrate vide order dated 28.01.2022 issued summons to the petitioners and others for offence punishable under Section 138 NI Act. The said complaint case was instituted with ....
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....tition) are directors. It was further recorded as under: "11. There must be averment that the person accused was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company. This is basic requirement under Section 141 NI Act. 12. In the case at hand, the complainant has not averred that the petitioner No. 2 and 4 were in charge of, and responsible to the petitioner No. 1 for conduct of its business. 13. In that regard, relevant para of the complaint is as under: "3. Accused No. 1 is a company registered under the Companies Act, 1956 which deals in sale, purchase, import and export of rice and other goods. Accused No. 3 i.e. Mr. Sumeet Saluja is the Managing Director of accused No. 1 company, and the complainant affirms that to the best of the complainant's knowledge, accused No. 3 is in charge and responsible for the dayto-day affairs, management and financial decision making of accused No. 1 company at the relevant time as well as at present and therefore have been impleaded in the present complaint. Accused No. 2 i.e. Mr. Vijay Kumar Saluja and accused No. 4 i.e. Mrs. Rupa Saluja a....
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....s dismissed. Criminal revision petition in respect of the petitioner No. 2 and 4 is allowed and summoning order against them is setaside. A copy of judgment alongwith trial Court record be sent back. The revision file be consigned to record room." C) Aggreived with the aforesaid order dated 07.07.2022, passed by the learned Additional Sessions Judge, the petitioners have preferred the present petition under Section 482 of the Cr.P.C. 3. Learned counsel for the petitioners raised the solitary ground of double jeopardy and submitted that the learned Additional Sessions Judge has committed an error in law by not appreciating the important question of law with respect to the maintainability of a second complaint on the same cause of action and therefore, the order passed by the learned Additional Sessions Judge ought to be set aside. It was submitted on behalf of the petitioners that the respondent had already filed a complaint for offence punishable under Section 138 of the NI Act being C.C. No. 3553/2021, on same cause of action, in so far as the invoices, raised by the respondent, in both the complaints are the same. By way of illustration, the petitioners have compiled a tabl....
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....g out of the invoices relied upon by the respondent. It is pertinent to note that C.C. No. 3553/2021 was filed subsequent to the subject complaint (C.C. No. 2352/2021) and in Para 21 of C.C. No. 3553/2021, annexed as Annexure P-5 (colly) to the present petition it has been stated as under; "21. That the complainant has already initiated one complaint case under section 138 of NI Act, for the cheques amounting to Rs. 85,26,520/- which is pending disposal before the Ld.MM Central Tis Hazari Court Delhi. The calculation shown above are based on the detail of cheques but as on date the complainant is entitled to Rs.1,94,53,509.00/- besides continuous interest accruing upon the unpaid amount @ 18 percent P.A." 6. Perusal of the aforesaid paragraph reflects that the said C.C. No. 3553/2021 disclosed the filing of the subject complaint case by the respondent with respect to the cheques which are subject matter of the present petition and further clearly stated that besides the aforesaid cheque, the liability of the petitioners towards the respondent remained to the tune of Rs.1,94,53,509.00/-, besides continuous interest accruing upon the unpaid amount @ 18% per annum. Moreove....