Final Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSION JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No. DLET01- 003799-2023
CR No. 73/23
Narendra Singh Bisht v. State & Anr.
Narendra Singh Bisht
S/o Late Sh. B. S. Bisht
R/o 2-A, SFS, DDA Flats
Skylark Apartment, Gazipur Village
Delhi-110093
…… Petitioner
Versus
1. State
NCT of Delhi
2. KMAP Capital Ltd.
Through Its Director
Ravi Prakash Gupta
Office at:-
C-203, Maurya Apartment
95-I. P. Extn., Patparganj, Delhi-110092
…... Respondents
Date of Institution : 22.03.2023
Date of reserving Order : 06.01.2024
Date of pronouncement : 18.01.2024
ORDER
1. Vide this revision petition, accused Narendra Singh
Bisht (hereinafter referred to as 'petitioner') has assailed the
impugned order dated 05.12.2022 passed by Ld. MM (NI Act)
Digital Court, East District, Karkardooma Courts, in case no.
1086/2021 titled as M/s KMAP Capital Limited v. M/s Shri Gopal
Ji Enterprises & Ors., filed under Section 138 of The Negotiable
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Instruments Act (hereinafter referred to as ‘NI Act), vide which
notice under Section 251 of Code of Criminal Procedure
(hereinafter referred to as ‘Cr.P.C.) was served upon the
petitioner by Ld. Trial Court.
2. Briefly stated, the respondent no. 2/ complainant is a
financial institution and accused no. 1 namely, M/s Shri Gopal Ji
Enterprises availed personal loan facility for a sum of
Rs.2,00,000/- from them. It was averred that on 19.07.2019 a
loan agreement was executed between respondent no. 2 and
accused no. 1, wherein accused no. 2 i.e. Sapna Rawat and
accused no. 3 i.e. Narender Singh Bisht (petitioner herein) stood
guarantors for accused no. 1.
3. It was averred that sanctioned loan of Rs. 2,00,000/-
was to be paid by accused no. 1 w.e.f. 19.07.2019 in 30 EMIs of
Rs. 8,833/- per month each. It was alleged that accused no. 1
issued 6 cheques bearing no. 625230, 625231, 625232, 625233,
625234 and 625235 in favour of respondent no. 2, each to the
tune of Rs.8,833/- in discharge of his legal liability for repayment
of EMIs, however, the said cheques got dishonored with remarks
of ‘funds insufficient’ vide returning memos dated 21.09.2020,
20.10.2020, 20.11.2020, 21.12.2020, 20.01.2021 and 20.02.2021
respectively. Thereafter, legal demand notice dated 23.02.2021
was sent by respondent no. 2 company to all the accused persons,
but the same was not replied by any of them. Since, accused
persons failed to pay the cheques amount in question, the
complaint in question bearing case no. 1086/2021 was filed by
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respondent no. 2/ complainant.
4. Vide order dated 08.02.2021, all the accused persons
were summoned for offence under Section 138 of NI Act by Ld.
Trial Court. After service of accused no. 3/ petitioner before Ld.
Trial Court, notice under Section 251 Cr.P.C. was served upon
him vide order dated 05.12.2022, wherein the petitioner pleaded
not guilty and claimed trial. In his plea of defence, petitioner
stated that the cheques in question do not bear his signatures and
that the same belong to accused no. 1 i.e. M/s Shri Gopal Ji
Enterprises. Petitioner further stated that accused no. 1 had
already died and that he had no role in transactions in question.
The impugned order dated 05.12.2022 passed by Ld. Trial Court
is reproduced herein under for ready reference:-
“…. CC NI ACT 1086/2021
M/S KMAP CAPITAL LIMITED Vs. M/SSHRI GOPAL JI
ENTERPRISES
P. S Patpar GanjIndustrial Area
05.12.2022
Matter taken up through VC on CISCO Webex.
Present : Ld. Counsel for the complainant.
Ld. Counsel for accused No. 3 along with
accused No. 3.
Notice of accusation u/s 251 Cr.P.C has been
served upon the accused No.3 to which the accused No.3
pleaded not guilty and claimed trial. Plea of defence of
the accused No. 3 has also been recorded. Ld. Counsel for
the accused No. 3 has orally submitted u/s 145(2) NI Act.
In view of plea of defence of accused, probable
defence has been raised. Therefore, accused is granted
one opportunity to cross examine complainant on next
date of hearing.
In these circumstances, in view of the second
proviso to section 143 (1) of the NI Act, instead of being
tried summarily, this case shall now be heard as a
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summons trial case.
Registry report for the summons received back for
accused No. 1 and 2 with the report unclaimed.
Counsel for the complainant submits that the
accused No. 1 and 2 are avoiding the process of law
deliberately and knowingly.
In view of the same, B/W in a sum of Rs. 5000/- be
issued against the accused No. 1 and 2 with one surety in
the like amount, on filing of PF, through SHO for
03.04.2023.
Put up for appearance of accused No. 1 and 2/further
proceedings/CE on 03.04.2023.
(Deepali Srivastava)
MM (NI Act) Digital Court
East /KKD Courts 05.12.2022….”
5. By way of this revision petition, the petitioner has
assailed aforesaid impugned order on following grounds:-
(i) That impugned order suffers from impropriety,
illegality and arbitrariness as Ld. Trial Court
failed to appreciate the cardinal principles
concerning the law relating to framing of the
charges/ notice;
(ii) That Ld. Trial Court failed to appreciate that
there is no specific allegation against accused no.
3/ petitioner to establish prima-facie case against
him;
(iii) That Ld. Trial Court failed to appreciate the fact
that petitioner is not the drawer of the cheques in
question at any point of time and allegations
against him are limited to being the guarantor of
the principal borrower;
(iv) That Ld. Trial Court failed to appreciate that
petitioner is neither director nor partner with
accused no. 1 firm and thus, criminal liability
under Section 138 of NI Act cannot be fastened
upon him;
(v) That Ld. Trial Court failed to appreciate that
legal demand notice dated 23.02.2021 under
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Section 138 of NI Act issued by the complainant/
respondent no. 2 relates to only one cheque
bearing no. 625235 dated 19.02.2021, while
complaint in question is filed for 6 cheques.
6. No formal reply is filed on behalf of the respondents
and they addressed oral arguments on the same. It is argued by
Ld. Counsel for respondent no. 2 that the present petition is abuse
of process of law and the impugned order dated 05.12.2022 is
just, reasonable and does not suffer from any legal infirmity. It is
argued that the petitioner signed as a guarantor on behalf of
accused no. 1 in the loan agreement in question, as such, he is
equally responsible qua dishonour of cheques in question which
were issued by accused no. 1 to respondent no. 2 in discharge of
his legal liability.
7. Arguments heard. Record perused carefully.
8. Section 138 of NI Act reads as under:-
138:- Dishonour of cheque for insufficiency, etc., of
funds in the account.
Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any
amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt
or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of
that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such
person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act,
be punished with imprisonment for [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
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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, 3[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.
9. In the case of Jugesh Sehgal v. Shamsher Singh
Gogi, (2009) 14 SCC 683, Hon'ble Supreme Court of India was
pleased to hold that to constitute an offence under Section 138 of
NI Act, following ingredients are required to be fulfilled:
“…. (i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain
amount of money to another person from out of that
account;
(ii) the cheque should have been issued for the discharge,
in whole or in part, of any debt or other liability;
(iii) that 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;
(iv) that cheque is returned by the bank unpaid, either
because of the amount of money standing to the credit of
the account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account
by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque
makes a demand for the payment of the said amount of
money by giving a notice in writing, to the drawer of the
cheque, within 15 days of the receipt of information by
him from the bank regarding the return of the cheque as
unpaid;
(vi) the drawer of such cheque fails to make payment of
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the said amount of money to the payee or the holder in
due course of the cheque within 15 days of the receipt of
the said notice.
Being cumulative, it is only when all the aforementioned
ingredients are satisfied that the person who had drawn
the cheque can be deemed to have committed an offence
under Section 138 of the Act….”
10. While relying upon the ratio of aforesaid judgment it
was reiterated by Hon'ble Supreme Court of India in the case of
Aparna A. Shah v. M/s Sheth Developers, 2013 (3) RCR (Cr)
686, that only the ‘drawer’ of the cheque can be prosecuted for an
offence under Section 138 of NI Act and in a case of issuance of
cheque from joint account, even a joint account holder cannot be
prosecuted unless the cheque has been signed by each and every
person who is a joint account holder.
11. In the present case, the petitioner is admittedly
neither the ‘drawer’ nor signed a single cheque in question as
placed on record by the respondent no. 2. Thus, an offence under
Section 138 of NI Act cannot be said to have been made out
against him in any manner. Ld. Trial Court clearly erred while
issuing summons and framing notice under Section 251 Cr.P.C.
upon the petitioner in this case.
12. Even otherwise, the offence under Section 138 of NI
Act is not made out against the petitioner on the ground that legal
notice dated 23.02.2021 sent by respondent no. 2 to the petitioner
was per se defective as the same pertained to only cheque bearing
no. 625235 while the complaint in question was filed by
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respondent no. 2/ complainant qua 6 cheques bearing no. 625230,
625231, 625232, 625233, 625234 and 625235.
13. With these observations, impugned order dated
05.12.2022 is set-aside and petitioner/ accused no. 3 is
discharged from offence under Section 138 of NI Act. The
petitioner/ accused no. 3 is directed to furnish bail bonds under
Section 437-A Cr.P.C. before Ld. Trial Court on date already
fixed there. Copy of this order along with Trial Court record be
sent back to the Ld. Trial Court for information and compliance.
14. File be consigned to Record room after due
compliance.
ANNOUNCED IN OPEN
COURT ON 18.01.2024
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
This order contains 8 pages and each paper is
signed by me.
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
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