JAFFREY EXPORT PVT LTD AND ORS vs ASHISH CHAUDHARY
$~96
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30.04.2024
+ CRL.M.C. 5433/2022 & CRL.M.A. 21540/2022, 10332/2023
JAFFREY EXPORT PVT LTD AND ORS ….. Petitioners
Through: Mr.Sunil Chaudhary, Ms.Preeti Shah, Advs.
versus
ASHISH CHAUDHARY ….. Respondent
Through: Mr.O.P. Gaggar, Mr.Sachindra Karn, Advs.
CORAM:
HONBLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C.), challenging the maintainability of the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short, NI Act), being Criminal Complaint Case No.519860/16, titled as Sh.Ashish Chaudhary v. M/s Jeffrey Exports Pvt. Ltd., and the order dated 08.01.2016 passed by the learned Metropolitan Magistrate, Central- District, Tis Hazari Courts, Delhi, issuing summons on the said complaint to the petitioners herein.
Brief Background
2. The said complaint case has been filed by the respondent alleging therein that the respondent is the wholesale cloth merchant and is carrying on his business of sale and purchase of fabric under the name and style of M/s Syndicate Clothing. The accused/petitioners had been purchasing cloth on credit basis from the respondent, assuring the respondent of timely payment.
3. In the complaint, it is asserted that as per the Books of Account, Rs.52,08,853/- was outstanding from the petitioners to the respondent. The petitioner no.4/accused no.4 issued 12 cheques drawn on Indian Bank, Defence Colony Branch, Delhi, when, in fact, the petitioner no.4 was not authorized to sign those cheques and this fact was concealed from the respondent. The petitioners then made a request to the respondent not to present those cheques for encashment and instead issued a single cheque for the sum of Rs.52,08,853/- drawn on Indian Bank, Defence Colony Branch, Delhi, again signed by the accused no.4. The accused no.4, by an email, requested the respondent to present the said cheque on 23.04.2015. However, when the cheque was presented for encashment, the same was returned vide Returning Memo dated 27.04.2015 with the remarks Drawer signature differs. A legal notice dated 21.05.2015 was thereafter served on the petitioners. The petitioners offered a settlement and entered into a Compromise Deed dated 25.06.2015 confirming that total amount due was Rs.52,08,853/-. They paid a sum of Rs.10 lakhs, out of which a sum of Rs.4,83,557/- was paid through cheque and another sum of Rs.5,16,443/- was paid in cash. They made further payments of Rs.3,50,000/- on 08.07.2015 and 28.07.2015, leaving the balance of Rs.35,08,853/-. For the payment of the balance amount, the cheque in question was issued, signed by the petitioner no.2/accused no.2, drawn on Indian Bank, Defence Colony Branch, Delhi. The same on presentation was, however, returned dishonored with remark payment stopped by the drawer.
4. The respondent then sent a legal notice dated 10.11.2015 to the petitioners seeking payment of the cheque amount. However, despite service of notice, the petitioners failed to make the payment of the said cheque amount, forcing the respondent to file the above complaint.
5. As noticed hereinabove, the petitioners were summoned in the above complaint vide order dated 08.01.2016.
Submissions of the learned counsel for the Petitioner
6. The learned counsel for the petitioners submits that the complaint is not maintainable inasmuch as the bank account of the petitioner no.1 had been attached by the Sales Tax Authority. In support, he places reliance on a purported certificate dated 19.11.2015 issued by the Indian Bank, Defence Colony Branch, Delhi to the petitioner no.1.
Submissions of the learned counsel for the respondent
7. The learned counsel for the respondent submits that the complaint case is at the stage of recording of the cross-examination of the complainant/respondent, however, the petitioners have been taking repeated adjournments, and by an order dated 05.03.2024, a cost of Rs.10,000/- has also been imposed by the learned Trial Court on the petitioners, observing the conduct of the petitioners.
8. The learned counsel for the respondent, on the plea of the petitioners that the bank account was attached by the Sales Tax Authorities, submits that the above document is disputed by the respondent. Placing reliance on the Returning Memo, he submits that the cheque in question was returned unpaid with remarks payment stopped by the drawer. He submits that, in any case, this would be a disputed question of fact which would be determined by the learned Trial Court once the parties lead their respective evidence; the complaint cannot be quashed at this stage.
9. He submits that the complaint has been pending adjudication since the year 2016 and it is only with a belated mala fide intent to scuttle the proceedings that the present petition has been filed in the year 2022. He submits that the petitioners were, in fact, declared as Proclaimed Offender (PO) in the complaint proceedings before the learned Trial Court.
Analysis and Conclusion
10. I have considered the submissions made by the learned counsels for the parties.
11. As has been contended by the learned counsel for the respondent, the complaint has been pending adjudication since the year 2016. Prior to the filing of the complaint, the respondent had issued a legal notice dated 10.11.2016 to the petitioners. It is not the case of the petitioners that the petitioners responded to the said legal notice and informed the respondent that the cheque had been returned dishonored because their account has been attached by the Sales Tax Authority. In any case, whether the cheque was returned unpaid as the bank account of the petitioners was attached by the Sales Tax Authority or for other reasons, is the disputed question of fact, which, would be determined by the learned Trial Court on receiving the evidence of the parties. As noted hereinabove, the Returning Memo records that the cheque has been returned unpaid with the remarks payment stopped by the drawer. This Court cannot enter into this disputed question of fact in the present proceedings.
12. Accordingly, both, on account of delay in filing as also on merit, I find no merit in the present petition. The same is dismissed. The petitioners shall pay costs of Rs.10,000/- to the respondent within a period of four weeks from today. The pending applications are also disposed of being rendered infructuous.
NAVIN CHAWLA, J
APRIL 30, 2024/Arya/ss
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CRL.M.C. 5433 /2022 Page 1 of 5