Final Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CR REV NO. 688/2024
M/S INDO SPIRITS DISTRIBUTION LTD.
Vs.
M/S PERNOD RICARD INDIA PRIVATE LIMITED
CR REV NO. 3/2025
SAMEER MAHANDRU
VS.
M/S PERNOD RICARD INDIA PRIVATE LIMITED
CR REV NO. 4/2025
M/S INDO SPIRITS
VS.
M/S PERNOD RICARD INDIA PRIVATE LIMITED
15.05.2025
Present: Sh. Hemant Shah, Ld. Counsel for the petitioners.
Sh. Karan Khanuja alongwith Sh. Raj Kamal, Sh.
Kunal Khanuja, Ms. Aprajita Tyagi & Sh. Harneet
Singh, Ld. Counsels for the respondent.
Today, the matter is fixed for orders on all the three
petitions which are against the order dated 31.08.2024 whereby
the petitioners have been summoned for the offence under S. 138
NI Act by the ld. JMFC. Since, all the three petitions are against
the same order, all the three petitions are taken together.
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ORDER
1. Vide this common order, I shall decide three revision
petitions against the order dated 31.08.2024. Vide said order, Ld.
JMFC has summoned the petitioners M/s Indo Spirits and
Sameer Mahendru being the signatory of the cheque in question
and PoA / controlling person of M/s Indo Spirits. The petitioner
Indo Spirits Distribution Ltd. has been summoned as it is partner
with M/s Indo Spirits alongwith other accused persons.
1.1. It is argued by the ld. Counsel for the petitioners that
the impugned order dated 31.08.2024 has been passed in a
mechanical manner without application of mind. He has taken
following grounds / arguments :
A. The complaint is not instituted by the Authorized
Representative. The affidavit was signed and executed in
capacity of AR on 10.02.2023 whereas the PoA was executed on
11.02.2023, being ante-dated and defective.
B. The complaint was instituted and signed by PoA Rahul
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Sharma while the vakalatnama is not signed by him. There is no
Board Resolution to authorize him to institute the complaint.
C. The legal notice is dated 29.12.2022 while the email
claimed to have served the legal notice on 28.12.2022.
D. The complaint is time barred. The legal notice was
received by email on 28.12.2022. The period of 15 days lapsed
on 12.01.2023. The limitation for filing the complaint lapsed on
12.02.2023. The complaint was filed on 03.03.2023, much
beyond the period of limitation.
E. No Liability crystallized on 30.08.2022 i.e. the date of
issuance of cheque as per the respondent.
F. The cognizance was taken on 31.08.2024 i.e. after coming
into force of BNSS, hence, proviso to S. 223 BNSS not complied
with.
G. The petitioners are located outside the local jurisdiction of
the Ld. JMFC, hence, the court had to mandatorily comply with
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the provisions of S. 202 Cr.P.C / 225 BNSS which were not
followed.
It is prayed that the order dated 31.08.2024 be set aside.
2. Per contra, it is argued by the ld. Counsel for
respondent that there is no infirmity in the order dated
31.08.2024. The complaint was filed within limitation as it was
e-filed on 11.02.2023. It is further submitted that there is no need
for postponment of process or examining the complainant as the
ld. JMFC has duly considered the affidavit and evidence of the
complainant before taking cognizance and issuing summons to
the petitioners. It is further submitted that as regards the
submission that there is no Board Resolution or the authority is
ante-dated, the same are curable defects. The existence of the
legal liability is a matter of evidence and cannot be raised in the
present revision petition. It is further submitted that S. 223 BNSS
is not applicable in the present case as the complaint has been
filed under S. 138 NI Act. It is prayed that all the three revision
petitions be dismissed.
3. Heard all the stakeholders and perused the revision
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files as well as the consequent replies. Also perused the
judgments relied upon by the counsels for both the parties.
4. Ground A & B : As regards the submissions made
by the Ld. Counsel for petitioners in ground A & B, the defects
so pointed are curable and as per the Trial Court Record, the
complainant / respondent had already moved the appropriate
application seeking substitution of AR and the same has already
been allowed by Ld. JMFC vide order dated 18.12.2023.
5. Ground C & D : It is argued by the Ld. Counsel for
the petitioner that the complaint case is barred by limitation as
the legal notice was received by email on 28.12.2022. The period
of 15 days lapsed on 12.01.2023. The limitation for filing the
complaint case lapsed on 12.02.2023. The complaint was filed on
03.03.2023, much beyond the period of limitation.
5.1. At the outset, it is pertinent to mention herein that
two partners of M/s Indo Spirits namely Arun Ramchandran
Pillai and Prem Rahul Manduri had also challenged the order
dated 31.08.2024 before the Hon’ble High Court of Delhi
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wherein they alongwith the other pleas have taken the plea of
limitation, which has been duly dismissed by the Hon’ble High
Court of Delhi vide order dated 07.01.2025 and 17.03.2025.
5.2. I have perused the order dated 31.08.2024. In the
said order, Ld. JMFC while relying upon the order in RE
Cognizance for Extension of Limitation dated 08.03.2021 has
stated that the complaint is within the period of limitation. The
said noting is wrong as the said judgment is not applicable to the
facts of the present case.
5.3. It is submitted by the Ld. Counsel for the
Respondent that the respondent has e-filed the complaint on
11.02.2023. He alongwith his reply has filed the history of e-
filing of the complaint case to show that the complaint draft was
e-filed on 11.02.2023 i.e. prior to the expiry of the limitation
period which expired on 12.02.2023. Since, the date of first filing
of the complaint i.e. 11.02.2023 is to be considered for the
purpose of computation of limitation period, there is prima facie
no delay in filing the present complaint by the respondent.
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6. Ground E : As regards the submission made by the
Ld. Counsel for petitioners in Ground E, the submission is more
in the nature of the defence of the petitioners and is a matter of
evidence and cannot be decided at this stage.
7. Ground F : It is argued by Ld. Counsel for
petitioner that the cognizance was taken on 31.08.2024 i.e. after
coming into force of BNSS, hence, proviso to S. 223 BNSS not
complied with.
7.1. As per the Trial Court Record, the present complaint
was instituted on 11.02.2023. Subsequently, in November 2023,
the Ld. Trial Court allowed the application seeking substitution
of the Authorized Representative for the complainant company.
The proceedings before the Ld. Trial Court, at the relevant stage,
were in the nature of an enquiry, as defined under Section 2(g)
CrPC. It is well-settled that prior to the issuance of process under
Section 204 CrPC, the proceedings remain at the stage of
enquiry.
7.2. S. 142 NI Act is a non-obstante clause and provides
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that taking cognizance contained in the Cr.P.C should give way to
the procedure prescribed under S. 142 NI Act. In the recent
judgment in M/s Ultimate Computer Care vs. M/S SMK
Systems passsed by the Madurai Bench of Madras High
Court in Criminal OP (MD) No. 19778 of 2022 decided on
12.02.2025, AND in Ashok vs. Fayaz Aahmed passed by High
court of Karnataka, Dharwad Bench in Crl. Petition No.
101514of 2025 decided no 28.04.2025, it has been held that
having regard to the fact that NI Act has prescribed a special
procedure, it is a special law within S. 5 of BNSS, 2023. Hence,
the procedure of hearing the accused at the stage of taking
cognizance as prescribed in the proviso to S. 2 to 3 BNSS shall
not apply to complaints under S. 138 NI Act, 1881.
7.3. In view of the above discussion and considering the
fact that the complaint case was filed on 11.02.2023 before
coming into force of BNSS, 2023, by operation of S. 531(1)(a)
BNSS, notice is not required under proviso to S. 223 BNSS.
8. Ground G : It is argued that the petitioners are
located outside the local jurisdiction of the Ld. JMFC, hence, the
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court had to mandatorily comply the provisions of S. 202 Cr.P.C /
225 BNSS which were not followed.
8.1. In Re : Expeditious Trial of Cases Under Section
138 NI Act, 1881, In re, (2021) 16 SCC 116, Hon’ble Supreme
Court of India has requested the High Courts to issue practice
directions for trying the complaint cases under s. 138 NI Act. In
the said judgment, it is stated that the enquiry shall be conducted
on receipt of complaints under S. 138 of the Act to arrive at
sufficient grounds to proceed against the accused, when such
accused resides beyond the territorial jurisdiction of the court.
For the conduct of the inquiry under s. 202 Cr.P.C., evidence of
witnesses on behalf of the complainant shall be permitted to be
taken on affidavit. In suitable cases, the Magistrate can restrict
the inquiry to examination of documents without insisting for
examination of witnesses.
8.2. Thus, the court while relying upon the evidence and
affidavit can summon the accused persons residing outside the
jurisdiction under S. 138 NI Act. The Ld. JMFC in the present
case has rightly summoned the petitioners after considering the
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evidence affidavit and contents of the complaint.
9. In the given facts and circumstances and on the basis
of above discussion, the petitioners have failed to show any
perversity or illegality in the order dated 31.08.2024. The same is
upheld.
All the three revision petitions are dismissed.
Trial Court Record, if any, along-with copy of order be
sent back forthwith. All the three revision files be consigned
to the Record Room.
(KIRAN GUPTA)
Addl. Sessions Judge-04
Patiala House Courts
New Delhi/15.05.2025
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