Full Text
Translation output
W.P.Crl. No.1816/2012 Page 1 HIGH COURT OF DELHI
W.P.(CRL) 1816/2012
NINA KHANNA ..... Petitioner
Through: Mr. Ramesh Gupta, Sr. Advocate with Mr. Arjun Singh Bawa, Advocate
W.P.(CRL) 1816/2012
NINA KHANNA ..... Petitioner
Through: Mr. Ramesh Gupta, Sr. Advocate with Mr. Arjun Singh Bawa, Advocate
VERSUS
STATE OF NCT OF DELHI &ANR. ..... Respondents
Through: Mr. Saleem Ahmed, Additional Standing Counsel for respondent
No.1-State and Ms. Charu Dalal, Advocate with SI Mr. Sandeep Panwar, PS Greater Kailash.
Ms. Shweta Bari, Advocate with Respondent No.2-in-person
Through: Mr. Saleem Ahmed, Additional Standing Counsel for respondent
No.1-State and Ms. Charu Dalal, Advocate with SI Mr. Sandeep Panwar, PS Greater Kailash.
Ms. Shweta Bari, Advocate with Respondent No.2-in-person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 07.03.2013
Crl.M.A.No. 20326/2012 (Exemption)
Allowed subject to all just exceptions.
W.P.(Crl.) No. 1816/2012 & Crl.M.A.No. 20327/2012
Quashing of criminal complaint cases No.l75/1/12 & 176/1/2012 both titled as Narayan Parwal v. Nina Ram @ Nina Khanna and setting aside of summoning orders of 30th April, 2012 passed in the said complaints against petitioner/accused is sought in this petition on the
2013:DHC:1292 W.P.Crl. No.1816/2012 Page 2 ground that ingredients of the offence under Section 138 of Negotiable
Instruments Act, 1881 do not exist as the cheques in question were issued as a security and not towards any existing liability or debt.
Learned senior counsel for petitioner had drawn attention of this
Court to Assignment Deed of 29th April, 2010 (Annexure V) with particular reference to clause 3 thereof to assert that the cheques in question were issued as a security. Clause 3 of the Assignment Deed (Annexure V) reads as under:
“That the above balance amount of Rs.3,98,00,000/- shall be paid by the ASSIGNEES from the consideration amount received by the assignees on transfer of the properties by sale and/or agreement for development etc. The amount shall be paid in such proportion or ratio as may be fixed between the parties from time to time as and when the part payments of the consideration amounts are received by the
ASSIGNEES. The aforesaid two instalments is secured by above four undated cheques executed by the
ASSIGNEES in favour of ASSIGNOR. Upon receipt of the full payments aforesaid the four cheques shall be returned by the ASSIGNOR to the ASSIGNEES uncashed.”
Learned senior counsel for petitioner had relied upon recent decision of the Apex Court in M.Mohan v. State, Represented by the Deputy
Superintendent of Police AIR 2011 SC 1238 to highlight parameters which govern the exercise of powers under Section 482 Cr.P.C. Reference was also made to Apex Court’s decisions in M.S.Narayana Menon alias Mani v. State of Kerala & Anr. AIR 2006 SC 3366, Collage Culture & Ors. v.Apparel Export Promotion Council 2007 (99) DRJ 251 and Joseph
W.P.Crl. No.1816/2012 Page 3 Vilangadan v. Phenomenal Health Care Services Ltd. & Anr. 2011 Crl. L. J. 531 to assert that where the cheque is issued as security, no case under
Section 138 of Negotiable Instruments Act is made out and process against the accused is liable to be quashed.
Learned counsel for second respondent/complainant refutes the aforesaid stand taken on behalf of petitioner and submits that decisions relied upon are of no help to the case of petitioner as it is emphatically denied on behalf of respondent/complainant that the cheques in question were issued as a security and according to learned counsel for respondent/complainant, it was issued towards existing liability and in this regard attention of this Court has been drawn to clause 2 of the Assignment
Deed (Annexure V), which is as under:
“The aforesaid total payment of Rs.4,00,00,000/- shall be made by the ASSIGNEES to the ASSIGNOR in the following manner:
Rs.1,00,000/- through cheques payable to the ASSIGNEES which is paid as under:
(i) Rs.25,000/- by cheque No. 284373 dated 2.3.2010 drawn on ICICI Bank and Rs.75,000/- Cheque
No.137491 dated 2.5.2010 drawn on Indian Overseas
Bank issued by Mr. Amrish Khanna.
(ii) Rs.1,00,000/- by cheque No.123994 dated 29th April, 2010 drawn on Standard Chartered issued by Mrs. Nina Khanna for self and on behalf of Shiv Khanna and
Siddarth Khanna.
(iii) Balance amount of Rs.3,98,00,000/- in two instalments as under:
W.P.Crl. No.1816/2012 Page 4 (i) Rs.1,00,00,000/- vide cheque No.137492 dated
Blank drawn on Indian Overseas Bank by Mr. Amrish Khanna.
(ii) Rs.99,00,000/- vide cheque No. 137495 dated
Blank drawn on India Overseas Bank by Mr. Amrish Khanna.
(iii) Rs.1,00,00,000/- vide cheque No.23996 dated
Blank drawn on Standard Chartered issued by Mrs. Nina Khanna for self and on behalf of Shiv
Khanna and Siddarth Khanna.”
(iv) Rs.99,00,000/- vide Cheuque No.123995 dated
Blank drawn on Standard Chartered issued by Mrs. Nina Khanna for self and on behalf of Shiv
Khanna dn Siddarth Khanna." While relying upon decision of a coordinate bench of this court in
Crl.M.C.No.1648/2011, Four Seasons Energy Ventures Pvt. Ltd. & Ors. v.
State of NCT of Delhi & Anr. rendered on 3rd July, 2012, complainant/respondent No.2's counsel seeks dismissal of this petition.
Having heard both the sides and upon perusal of impugned order, criminal complaint (Annexure V), material on record and the decisions cited, I find that if clause 3 of the Assignment Deed in question is disjunctively read then it perhaps gives an impression that it has been given as a security but when it is read conjointly with afore-referred clause
2 of the Assignment Deed in question then it prima facie appears that it has been given as a security for payment of instalments as reflected in the
Assignment Deed and if there is any default then the cheques in question
W.P.Crl. No.1816/2012 Page 5 could be encashed towards the payments due. Whether the said payment due would come within the ambit of the security cheque or not is a matter which cannot be pre-judged at this stage as this Court finds that the decision in M.S.Narayana Menon (supra) was a decision rendered in an appeal and the decision in Joseph Vilangadan (supra) relied upon by petitioner is distinguishable as in the said case the cheque was issued as the security deposit for due performance of the terms of the contract whereas it is not so in the instant case. The legal parameters within which the inherent powers are to be exercised, as reiterated by Apex Court in
M.Mohan (supra) are as under:-
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”
Applying the parameters governing the scope of exercise of inherent powers, this Court is inclined to agree with the view taken by a coordinate bench of this Court in Four Seasons (supra) wherein inherent powers to
W.P.Crl. No.1816/2012 Page 6 quash proceedings under Section 138 of Negotiable Instruments Act was not exercised as it was found that it was not a case of accused that no debt is existing and so the cheques were not issued as a security only. Similar is the position here. It is not the case of petitioner that no debt exists in respect of which the cheques in question were presented but had bounced.
In the light of the aforesaid, this Court refrains to exercise its inherent powers to quash aforesaid criminal complaints and while leaving the question of cheques in question being a security or not, is open to be considered by trial court as it is very much in dispute whether the cheques in question were issued as a security or not. Needless to say that trial court would consider this aspect uninfluenced by any observation made in this order.
(SUNIL GAUR)
Judge MARCH 07, 2013 vn
Crl.M.A.No. 20326/2012 (Exemption)
Allowed subject to all just exceptions.
W.P.(Crl.) No. 1816/2012 & Crl.M.A.No. 20327/2012
Quashing of criminal complaint cases No.l75/1/12 & 176/1/2012 both titled as Narayan Parwal v. Nina Ram @ Nina Khanna and setting aside of summoning orders of 30th April, 2012 passed in the said complaints against petitioner/accused is sought in this petition on the
2013:DHC:1292 W.P.Crl. No.1816/2012 Page 2 ground that ingredients of the offence under Section 138 of Negotiable
Instruments Act, 1881 do not exist as the cheques in question were issued as a security and not towards any existing liability or debt.
Learned senior counsel for petitioner had drawn attention of this
Court to Assignment Deed of 29th April, 2010 (Annexure V) with particular reference to clause 3 thereof to assert that the cheques in question were issued as a security. Clause 3 of the Assignment Deed (Annexure V) reads as under:
“That the above balance amount of Rs.3,98,00,000/- shall be paid by the ASSIGNEES from the consideration amount received by the assignees on transfer of the properties by sale and/or agreement for development etc. The amount shall be paid in such proportion or ratio as may be fixed between the parties from time to time as and when the part payments of the consideration amounts are received by the
ASSIGNEES. The aforesaid two instalments is secured by above four undated cheques executed by the
ASSIGNEES in favour of ASSIGNOR. Upon receipt of the full payments aforesaid the four cheques shall be returned by the ASSIGNOR to the ASSIGNEES uncashed.”
Learned senior counsel for petitioner had relied upon recent decision of the Apex Court in M.Mohan v. State, Represented by the Deputy
Superintendent of Police AIR 2011 SC 1238 to highlight parameters which govern the exercise of powers under Section 482 Cr.P.C. Reference was also made to Apex Court’s decisions in M.S.Narayana Menon alias Mani v. State of Kerala & Anr. AIR 2006 SC 3366, Collage Culture & Ors. v.Apparel Export Promotion Council 2007 (99) DRJ 251 and Joseph
W.P.Crl. No.1816/2012 Page 3 Vilangadan v. Phenomenal Health Care Services Ltd. & Anr. 2011 Crl. L. J. 531 to assert that where the cheque is issued as security, no case under
Section 138 of Negotiable Instruments Act is made out and process against the accused is liable to be quashed.
Learned counsel for second respondent/complainant refutes the aforesaid stand taken on behalf of petitioner and submits that decisions relied upon are of no help to the case of petitioner as it is emphatically denied on behalf of respondent/complainant that the cheques in question were issued as a security and according to learned counsel for respondent/complainant, it was issued towards existing liability and in this regard attention of this Court has been drawn to clause 2 of the Assignment
Deed (Annexure V), which is as under:
“The aforesaid total payment of Rs.4,00,00,000/- shall be made by the ASSIGNEES to the ASSIGNOR in the following manner:
Rs.1,00,000/- through cheques payable to the ASSIGNEES which is paid as under:
(i) Rs.25,000/- by cheque No. 284373 dated 2.3.2010 drawn on ICICI Bank and Rs.75,000/- Cheque
No.137491 dated 2.5.2010 drawn on Indian Overseas
Bank issued by Mr. Amrish Khanna.
(ii) Rs.1,00,000/- by cheque No.123994 dated 29th April, 2010 drawn on Standard Chartered issued by Mrs. Nina Khanna for self and on behalf of Shiv Khanna and
Siddarth Khanna.
(iii) Balance amount of Rs.3,98,00,000/- in two instalments as under:
W.P.Crl. No.1816/2012 Page 4 (i) Rs.1,00,00,000/- vide cheque No.137492 dated
Blank drawn on Indian Overseas Bank by Mr. Amrish Khanna.
(ii) Rs.99,00,000/- vide cheque No. 137495 dated
Blank drawn on India Overseas Bank by Mr. Amrish Khanna.
(iii) Rs.1,00,00,000/- vide cheque No.23996 dated
Blank drawn on Standard Chartered issued by Mrs. Nina Khanna for self and on behalf of Shiv
Khanna and Siddarth Khanna.”
(iv) Rs.99,00,000/- vide Cheuque No.123995 dated
Blank drawn on Standard Chartered issued by Mrs. Nina Khanna for self and on behalf of Shiv
Khanna dn Siddarth Khanna." While relying upon decision of a coordinate bench of this court in
Crl.M.C.No.1648/2011, Four Seasons Energy Ventures Pvt. Ltd. & Ors. v.
State of NCT of Delhi & Anr. rendered on 3rd July, 2012, complainant/respondent No.2's counsel seeks dismissal of this petition.
Having heard both the sides and upon perusal of impugned order, criminal complaint (Annexure V), material on record and the decisions cited, I find that if clause 3 of the Assignment Deed in question is disjunctively read then it perhaps gives an impression that it has been given as a security but when it is read conjointly with afore-referred clause
2 of the Assignment Deed in question then it prima facie appears that it has been given as a security for payment of instalments as reflected in the
Assignment Deed and if there is any default then the cheques in question
W.P.Crl. No.1816/2012 Page 5 could be encashed towards the payments due. Whether the said payment due would come within the ambit of the security cheque or not is a matter which cannot be pre-judged at this stage as this Court finds that the decision in M.S.Narayana Menon (supra) was a decision rendered in an appeal and the decision in Joseph Vilangadan (supra) relied upon by petitioner is distinguishable as in the said case the cheque was issued as the security deposit for due performance of the terms of the contract whereas it is not so in the instant case. The legal parameters within which the inherent powers are to be exercised, as reiterated by Apex Court in
M.Mohan (supra) are as under:-
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”
Applying the parameters governing the scope of exercise of inherent powers, this Court is inclined to agree with the view taken by a coordinate bench of this Court in Four Seasons (supra) wherein inherent powers to
W.P.Crl. No.1816/2012 Page 6 quash proceedings under Section 138 of Negotiable Instruments Act was not exercised as it was found that it was not a case of accused that no debt is existing and so the cheques were not issued as a security only. Similar is the position here. It is not the case of petitioner that no debt exists in respect of which the cheques in question were presented but had bounced.
In the light of the aforesaid, this Court refrains to exercise its inherent powers to quash aforesaid criminal complaints and while leaving the question of cheques in question being a security or not, is open to be considered by trial court as it is very much in dispute whether the cheques in question were issued as a security or not. Needless to say that trial court would consider this aspect uninfluenced by any observation made in this order.
(SUNIL GAUR)
Judge MARCH 07, 2013 vn
JUDGMENT