AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 263
X X X X Extracts X X X X
X X X X Extracts X X X X
....MENT 1. These petitions have been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') seeking quashing of the Complaints filed under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short, 'NI Act'), being CC No. 8494/2016 (in CRL.M.C. 1675/2022), CC No. 8493/2016 (in CRL.M.C. 1688/2022 and CRL.M.C. 1066/2023), CC No. 243/2018 (in CRL.M.C. 1693/2022), CC No. 4487/2016 (in CRL.M.C. 1694/2022), and CC No. 8495/2016 (in CRL.M.C. 1067/2023) (hereinafter collectively referred to as the 'Complaint Cases'), as well as the summoning orders dated 27.07.2013, 26.09.2014, and 22.02.2015 passed in the said Complaint cases, along with all subsequent proceedings emanating therefrom. 2. Since the Complaint Cases have been founded on the same transaction, though in respect of different cheques, and pertain to the same set of facts and circumstances, and mainly common contentions have been raised to seek quashing thereof, therefore, these petitions are being disposed of by way of this common judgment. Factual Matrix: 3. The above complaints have been filed by the Complainant, that is, Mr. Shivam Bhagat, alleging that the petitioners....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ious cheques had been issued by the petitioners. 8. It is alleged that the petitioners further promised to pay an extra amount over and above the aforesaid amount, being the 10% increase in the property of hotels at Goa, which was to be valued at the time of the final settlement/buy-back of shares from the Complainant. 9. It is alleged that the petitioners also promised to pay the complainant 18% interest on the invested amount if warranties were proved false. 10. It is alleged that in consideration of the abovementioned amount invested by the Complainant in the company of the petitioners and the money paid towards the payment of loans and renovations and interest thereon, the petitioners issued various undated cheques from their personal account(s) in addition to a cheque from the account of the said company duly and jointly signed by the petitioners, with a right to the Complainant to insert dates on the said cheques. It is stated that as per the SSSA, the petitioners also promised to pay the Complainant interest on all the aforesaid amounts and also assured that the cheques for the final interest amount would be issued at the time of said payment. 11. It is asserted in the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere drawn on banks outside the territorial jurisdiction of the said Court. 17. As far as the complaints in Crl.M.Cs. 1675/2022, 1688/2022, 1693/2022, 1067/2023, and 1066/2023 are concerned, the same on their transfer were listed before the Court of the learned Judicial Magistrate First Class, Gurugram, Haryana, (hereinafter referred to as the 'JMFC') and the said Court, vide its order dated 26.09.2014, was pleased to issue summons to the petitioners on the said Complaints. 18. Later, in view of the Negotiable Instruments (Amendment) Ordinance, 2015, which came into effect on 15.06.2015, the learned JMFC transferred the Complaints to the Court having competent jurisdiction at the Rohini Courts, Delhi. 19. As far as Crl.M.C. 1694/2022 is concerned, on transfer, the Complaint was listed before the Court of the learned Metropolitan Magistrate-03, North District Rohini Court, which Court, vide its order dated 22.01.2015, was pleased to issue summons to the accused/petitioner-Sachin Gogia. 20. The Complaint Cases are now pending adjudication before the Court of the learned Metropolitan Magistrate-03, North District, Rohini Courts, Delhi (hereinafter referred to as the 'Trial Court').....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Complainant had transferred the shares to the petitioners in terms of the SSSA. In fact, it is the own case of the Complainant that even the transfer of the shares in his own favour has still not been registered with SBHPL, therefore, the Complainant was in no position to honour his commitment of transferring the shares to the petitioners pursuant to the buy-back of shares even if such an offer was accepted by the petitioners. He submits that as the cheques in question were given as consideration/security for the transfer of the shares, the said liability in the absence of such transfer did not accrue. He submits that in the absence of any liability to pay, a complaint under Section 138 of the NI Act was not maintainable. In support, he places reliance on the judgments of the Supreme Court in Indus Airways (P) Limited & Ors. v. Magnum Aviation (P) Limited & Anr. (2014) 12 SCC 539; and Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel, (2023) 1 SCC 578; and of this Court in Icon Buildcon Pvt. Limited v. Aggarwal Developers Pvt. Limited & Ors., 2014 SCC OnLine Del 1563. 26. He further submits that in terms of the SSSA and the letter dated 15.07.2010, two sets of cheque....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6) 16 SCC 30; and of this Court in Arvind Kejriwal & Anr. v. State NCT of Delhi, 2020 SCC OnLine Del 1362. 29. He further submits that, in any case, there is no delay in filing of the present petitions. He submits that the complaints were filed in 2013, and the learned Metropolitan Magistrate therein was pleased to issue summons on the same to the petitioners vide order dated 27.07.2013. However, later, in terms of the judgment of the Supreme Court in Dashrath Rupsingh Rathod (Supra), the complaints were transferred and were listed before the learned JMFC, who was pleased to issue fresh summons to the petitioners on the same. He submits that thereafter, in view of the amendment to the NI Act, the complaints were again transferred to the learned Trial Court, and fresh notices of appearance were issued to the petitioners. The parties were then referred to Mediation and they tried to explore the possibility of arriving at an amicable settlement, however, the Settlement could not fructify. He submits that thereafter, the Covid-19 pandemic intervened because of which further time was taken to file the present petitions. He submits that, therefore, there is no delay in filing of the pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....16. He submits that though the parties tried to settle their disputes, this in no manner prevented the petitioners from challenging the maintainability of the complaints. He submits that the present set of petitions has been filed with a delay of more than nine years and, therefore, deserves to be dismissed on this account alone. In support of his submission, he places reliance on the judgment of this Court in Vipin Kumar Gupta v. Sarvesh Mahajan, 2019 SCC OnLine Del 12349. 33. He further submits that a petition under Section 482 of the Cr.P.C. cannot be filed to overcome the period of limitation that would be applicable in case the petitioners were to file a Revision under Section 397 of the Cr.P.C., which is, in fact, the proper remedy. He places reliance on the judgment of the Supreme Court in Prabhu Chawla (Supra); and of this Court in Satish Lamba & Anr. v. NCT of Delhi & Ors. (Order dated 14.09.2023 in Crl.M.C.4396 of 2023). 34. On merits, he submits that the submissions made by the learned counsels for the petitioners raise disputed questions of facts, which cannot be adjudicated by this Court while exercising its jurisdiction under Section 482 of the Cr.P.C; these dispute....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the SGPL and the cheques issued by the petitioners in their own personal capacity, could not have been presented for encashment or complaints on their dishonour could not have been filed by Complainant, also has no merit. He submits that the total liability owed by the petitioners in terms of the SSSA is much more than the amount of the cheques issued in the name of the company and in the personal capacity of the petitioners. He submits that in terms of the SSSA, the petitioners are to repay not only the purchase price of the shares, that is, Rs. 2.50 crores, but also the amount invested by the Complainant towards repayment of Bank loans and interests, renovation cost, interest on the above amounts, and notional increase on the value of the immovable property. He submits that the liability is also admitted in the balance sheet of the SBHPL, which amounts to an admission of debt in terms of the judgment of the Supreme Court in Asset Reconstruction Company (India) Limited v. Bishal Jaiswal & Anr., 2021 SCC OnLine SC 321. 40. Countering the submission of the learned counsels for the petitioners that the cheques in question were not issued for the debt or liability in present, but ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rly, the Courts have refused to entertain a petition under Section 482 of the Cr.P.C. where it is filed with unexplained delay and laches and in the meantime, the trial has proceeded. 45. In Prabhu Chawla (Supra), the Supreme Court quoted with approval its earlier judgment in Madhu Limaye (Supra), 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.. 46. This Court in Vipin Kumar Gupta (Supra), placing reliance on its earlier judgment in Rajesh Chetwal v. State Neutral Citation no.2011:DHC:4313, held that though there is no period of limitation prescribed for filing of a petition under Section 482 of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the same. I also find the challenge, at this belated stage, to be mala fide and intended to cause further delay in the adjudication of the complaint cases. 50. 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. 51. Even otherwise, I find no reason to interfere in the complaint cases in exercise of powers under Section 482 Cr.P.C.. 52. As noted hereinabove, the primary challenge of the petitioners to the maintainability of the complaint cases is the non-compliance of the Complainant with the provision of Clause 4.2 read with Clause 18.2 of the SSSA, that is, inadequate period of notice and not giving of notice to the SGPL. 53. I shall first reproduce the above Clauses of the Agreement. Clause 4 of the SSSA reads as under:- "4. TRANSFER OF SHARES 4.1 Restriction. No Shareholder shall, for a period of six months from the Effective Date, directly or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ainant had issued the notice dated 04.10.2012 seeking to exercise his rights to sell the shares. This notice is, therefore, admittedly before the expiry of 27 months from the Effective Date of the SSSA. 55. The petitioners have, however, relied on Clause 18.2 to submit that the notice will be deemed to have been given only after 7 days of its posting. They relied on Clause 18.2 of the SSSA, which is reproduced hereinbelow: - "18. NOTICES xxxx 18.2 Delivery. All notices shall be deemed to have been validly given on the expiry of 7 (seven) days after the expiry of posting if transmitted by registered airmail or by courier." 56. The above clause, prima facie, appears to be incorporated only to introduce a deeming fiction for the service/delivery of notice. What effect it shall have on Clause 4.2 of the SSSA shall have to be considered by the Trial Court after hearing the parties and considering their evidence. This question may not be answered at this stage by this Court without letting the parties lead their respective evidence. 57. As regards the plea of the petitioners that the notice is not addressed to SGPL, as noted hereinabove, it is the case of the Complainant that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0000/-Aakash 125164 AXIS Bank 2500000/-Aakash Interest cheques will be issued at time of settlement date." (Emphasis supplied) 59. The letter, therefore, requires the notice to be given to the three individuals who are the petitioners herein. The effect of the above letter would also have to be considered by the learned Trial Court on the conclusion of the evidence of the parties. 60. As far as the plea of the petitioners that both sets of cheques could not have been presented by the Complainant for encashment is concerned, the same also cannot be accepted at this stage to quash the complaints. In terms of SSSA read with the above letter dated 15.07.2010, the cheques were issued not only for the buy-back of the shares by the company but also for the repayment of the other investments made by the Complainant and interest accrued thereon. The learned counsel for Complainant has submitted that the amount owed in terms of the SSSA and the letter dated 15.07.2010 surpasses the amounts mentioned in the cheques. These again are issues to be determined by the learned Trial Courts, and this Court cannot enter into such disputed questions of facts at this stage. 61. In Sunil Todi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 54. In the present case, it is evident that the principal grounds of challenge which have been set up on behalf of the appellants are all matters of defence at the trial. The Magistrate having exercised his discretion, it was not open to the High Court to substitute its discretion. The High Court has in a carefully considered judgment, analysed the submissions of the appellants and for justifiable reasons has come to the conclusion that they are lacking in substance." 62. Recently in Rathish Babu Unnikrishnan (supra), the Supreme Court has again cautioned that power under Section 482 of the Cr.P.C. should not be exercised by the High Court to scuttle a complaint at an initial stage and in a mechanical manner. It was further held that disputed questions of facts are best left to be determined by the learned Trial Court on a complete trial. I may quote from the said judgment as under:- "16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... omission essential to complete the commission of offence by the company was being committed and which eventually gave rise to the offence, are all liable to be prosecuted. I may quote from the said judgment as under: - "34. The seminal issue raised and required to be settled in the present case is one relating to a person liable to be proceeded against under the provisions of sub-section (1) of Section 141 for being in-charge of and responsible to the company "at the time the offence was committed." It would, therefore, be important to find out the "time" when the offence under Section 138 can be said to have been committed by the company. It is commonplace that an offence means an aggregate of facts or omissions which are punishable by law and, therefore, can consist of several parts, each part being committed at different time and place involving different persons. The provisions of Section 138 would require a series of acts of commission and omission to happen before the offence of, what may be loosely called "dishonour of cheque" can be constituted for the purpose of prosecution and punishment. It is held by the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan, that ....