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CRL.M.Cs. 4347 & 4360 of 2013 Page 1 HIGH COURT OF DELHI
Date of Decision: August 10, 2015 (i) + CRL.M.C. 4347/2013 &Crl.M.A.15509/2013
VMC SYSTEMS LTD. & ORS. ..... Petitioners
Through: Mr. R.K. Prakash and Mr. Hem C.
Vashisht, Advocates
Date of Decision: August 10, 2015 (i) + CRL.M.C. 4347/2013 &Crl.M.A.15509/2013
VMC SYSTEMS LTD. & ORS. ..... Petitioners
Through: Mr. R.K. Prakash and Mr. Hem C.
Vashisht, Advocates
VERSUS
STATE &ANR. ....Respondents
Through: Mr. Vinod Diwakar, Additional Public Prosecutor for respondent-
State Mr. Pavan Narang and Mr. Anupam Prakash, Advocates for respondent No.2
(ii) + CRL.M.C. 4360/2013 & Crl.M.A.15655/2013
B VENKATRAMANA & ANR. .....Petitioners
Through: Mr. R.K. Prakash and Mr. Hem C.
Vashisht, Advocates
Through: Mr. Vinod Diwakar, Additional Public Prosecutor for respondent-
State Mr. Pavan Narang and Mr. Anupam Prakash, Advocates for respondent No.2
(ii) + CRL.M.C. 4360/2013 & Crl.M.A.15655/2013
B VENKATRAMANA & ANR. .....Petitioners
Through: Mr. R.K. Prakash and Mr. Hem C.
Vashisht, Advocates
VERSUS
STATE &ANR. ....Respondents
Through: Mr. Vinod Diwakar, Additional Public Prosecutor for respondent-
State Mr. Pavan Narang and Mr. Anupam Prakash, Advocates for respondent No.2
2015:DHC:6393 CRL.M.Cs. 4347 & 4360 of 2013 Page 2
Through: Mr. Vinod Diwakar, Additional Public Prosecutor for respondent-
State Mr. Pavan Narang and Mr. Anupam Prakash, Advocates for respondent No.2
2015:DHC:6393 CRL.M.Cs. 4347 & 4360 of 2013 Page 2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
In the above-captioned two petitions, quashing of complaint funder
Section 138 of the Negotiable Instruments Act, 1881 and the Notice framed under Section 251 of Cr.P.C. is sought on identical grounds and so, both these petitions were heard together and by this common judgment, they are being disposed of.
At the hearing, it was vehemently contended that the proceedings arising out of the complaint in question ought not to continue on three counts. Firstly, on the ground that respondent-complainant is foreign firm and is not a legal entity recognized under the Indian law; secondly, on the ground that respondent-complainant is not holder of the cheque in question in due course; and thirdly, on the ground that the complaint in question is barred by time. It was submitted by learned counsel for petitioners that the dishonoured cheque in question as in the name of
Punjab Communications Limited and not in the name of respondent- complainant herein.
On the limitation aspect, it was submitted that the dishonoured cheque in question was not presented during the period of limitation.
Reliance was placed by learned counsel for petitioners upon decisions in
Sadanandan Bhadran v. Madhavan Sunil Kumar AIR 1998 SC 3043, Milind Shripad Chandurkar v. Kalim M.Khan and Another (201) 4 SCC
275 and P.K. Koya Moideen v. G. Hariharan 1996 (86) Comp. Cases 399
(Ker.) in support of above submissions.
CRL.M.Cs. 4347 & 4360 of 2013 Page 3 On behalf of respondent-complainant, reliance was placed upon decisions in State of Haryana & Ors. v. Bhajan Lal and Others 1992
Supp (1) SCC 335, Rajesh Agarwal v. State & Anr. 171 (2010) DLT 51, Punjab & Sind Bank v. Vinkar Sahakari Bank Ltd. & Ors. (2001) 7 SCC
721, Bank of India v. State and Ors. 2010 (199) DRJ 401, K.R. Indira v.
Dr. G. Adinarayana (2003) 8 SCC 300, U.Ponnappa Moothan Sons, Palghat v. Catholic Syrian Bank Ltd. and Ors. (1991) 1 SCC 113, Sada
Vijay Kumar v. State of Maharashtra in Crl. Appln. No.638/2012 rendered on 18th December, 2012, India Saree Museum v. P. Kapurchand and Anr. rendered on 4th April, 1989 and Anil Kumar Jaiswal v. State and
Anr. rendered on 23rd August, 2006 to submit that an endorsement has been made on the cheque in question by virtue of which respondent- complainant becomes holder of the cheque in question in due course and in this regard, attention of this Court is drawn to petitioners’
Communication of 29th November, 2012 to respondent-complainant.
It is submitted that the statutory notice was given on 6th February, 2013 in respect of the dishonoured cheque of 30th November, 2012 and thus, complaint in question is within the period of limitation. As regards respondent-complainant being a legal entity, attention of this Court was drawn to Section 11 of the Indian Penal Code. Lastly, it was submitted that the grounds on which quashing of the complaint in question is sought, essentially relate to facts, which are required to be established during the proceedings, which are of summary nature and so, no case for quashing the complaint in question is made out.
Upon considering the submissions advanced by both the sides and on perusal of the impugned Notice under Section 251 of Cr.P.C., the
CRL.M.Cs. 4347 & 4360 of 2013 Page 4 Escrow Account Agreement of 26th December, 2007, petitioners’
November, 2012 addressed to respondent- complainant, the material on record and the decisions cited, I find that respondent-complainant is a legal entity within the meaning of Section 11 of the Indian Penal Code. In view of Clause 6.7 Escrow Account
Agreement of 26th December, 2007 coupled with petitioners’
November, 2012, I find that the question of respondent-complainant being the holder of the cheque in question or not, is of fact, which is required to be established before the trial court after respondent-complainant is duly cross-examined.
Regarding the question of limitation, I find that it is a mixed question of law and fact, which cannot be pre-judged in proceedings under Section 482 of Cr.P.C.. Infact, the decisions relied upon by petitioners are of no avail at this stage. However, the evidence on record needs to be scrutinized by trial court at the final hearing in the light of the decision cited.
In view of aforesaid, without commenting upon merits of this case, the above captioned two petitions and the applications are disposed of with liberty to petitioners to urge the pleas taken herein before the trial court at the final stage.
(SUNIL GAUR)
JUDGE
AUGUST 10, 2015 s
In the above-captioned two petitions, quashing of complaint funder
Section 138 of the Negotiable Instruments Act, 1881 and the Notice framed under Section 251 of Cr.P.C. is sought on identical grounds and so, both these petitions were heard together and by this common judgment, they are being disposed of.
At the hearing, it was vehemently contended that the proceedings arising out of the complaint in question ought not to continue on three counts. Firstly, on the ground that respondent-complainant is foreign firm and is not a legal entity recognized under the Indian law; secondly, on the ground that respondent-complainant is not holder of the cheque in question in due course; and thirdly, on the ground that the complaint in question is barred by time. It was submitted by learned counsel for petitioners that the dishonoured cheque in question as in the name of
Punjab Communications Limited and not in the name of respondent- complainant herein.
On the limitation aspect, it was submitted that the dishonoured cheque in question was not presented during the period of limitation.
Reliance was placed by learned counsel for petitioners upon decisions in
Sadanandan Bhadran v. Madhavan Sunil Kumar AIR 1998 SC 3043, Milind Shripad Chandurkar v. Kalim M.Khan and Another (201) 4 SCC
275 and P.K. Koya Moideen v. G. Hariharan 1996 (86) Comp. Cases 399
(Ker.) in support of above submissions.
CRL.M.Cs. 4347 & 4360 of 2013 Page 3 On behalf of respondent-complainant, reliance was placed upon decisions in State of Haryana & Ors. v. Bhajan Lal and Others 1992
Supp (1) SCC 335, Rajesh Agarwal v. State & Anr. 171 (2010) DLT 51, Punjab & Sind Bank v. Vinkar Sahakari Bank Ltd. & Ors. (2001) 7 SCC
721, Bank of India v. State and Ors. 2010 (199) DRJ 401, K.R. Indira v.
Dr. G. Adinarayana (2003) 8 SCC 300, U.Ponnappa Moothan Sons, Palghat v. Catholic Syrian Bank Ltd. and Ors. (1991) 1 SCC 113, Sada
Vijay Kumar v. State of Maharashtra in Crl. Appln. No.638/2012 rendered on 18th December, 2012, India Saree Museum v. P. Kapurchand and Anr. rendered on 4th April, 1989 and Anil Kumar Jaiswal v. State and
Anr. rendered on 23rd August, 2006 to submit that an endorsement has been made on the cheque in question by virtue of which respondent- complainant becomes holder of the cheque in question in due course and in this regard, attention of this Court is drawn to petitioners’
Communication of 29th November, 2012 to respondent-complainant.
It is submitted that the statutory notice was given on 6th February, 2013 in respect of the dishonoured cheque of 30th November, 2012 and thus, complaint in question is within the period of limitation. As regards respondent-complainant being a legal entity, attention of this Court was drawn to Section 11 of the Indian Penal Code. Lastly, it was submitted that the grounds on which quashing of the complaint in question is sought, essentially relate to facts, which are required to be established during the proceedings, which are of summary nature and so, no case for quashing the complaint in question is made out.
Upon considering the submissions advanced by both the sides and on perusal of the impugned Notice under Section 251 of Cr.P.C., the
CRL.M.Cs. 4347 & 4360 of 2013 Page 4 Escrow Account Agreement of 26th December, 2007, petitioners’
November, 2012 addressed to respondent- complainant, the material on record and the decisions cited, I find that respondent-complainant is a legal entity within the meaning of Section 11 of the Indian Penal Code. In view of Clause 6.7 Escrow Account
Agreement of 26th December, 2007 coupled with petitioners’
November, 2012, I find that the question of respondent-complainant being the holder of the cheque in question or not, is of fact, which is required to be established before the trial court after respondent-complainant is duly cross-examined.
Regarding the question of limitation, I find that it is a mixed question of law and fact, which cannot be pre-judged in proceedings under Section 482 of Cr.P.C.. Infact, the decisions relied upon by petitioners are of no avail at this stage. However, the evidence on record needs to be scrutinized by trial court at the final hearing in the light of the decision cited.
In view of aforesaid, without commenting upon merits of this case, the above captioned two petitions and the applications are disposed of with liberty to petitioners to urge the pleas taken herein before the trial court at the final stage.
(SUNIL GAUR)
JUDGE
AUGUST 10, 2015 s