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$--46 HIGH COURT OF DELHI
CRL.M.C. 771/2011
NINO CHAKA P.LTD. Petitioner
Through: Mr. Jayant Mehta, Mr. S.K. Singh, Advs.
CRL.M.C. 771/2011
NINO CHAKA P.LTD. Petitioner
Through: Mr. Jayant Mehta, Mr. S.K. Singh, Advs.
VERSUS
DEPARTMENT OF CUTOMS Respondent
Through:
Through:
CORAM:
HON'BLE MS, JUSTICE MUKTA GUPTA
18.08.2011 By this petition the Petitioner seeks quashing of criminal complaint
No. 3455/2001 under Sections 138/141/142 of the Negotiable Instruments
Act (in short N.I. Act) pending before the Court of Learned Metropolitan
Magistrate Shri Ai'vind Bansal, Patiala House, New Delhi.
The facts giving rise to the filing of the present petition are that the
Respondent fded a complaint alleging therein that the Petitioner No.l evaded the customs duty to the tune of Rs. 40 lakhs and in this respect, Petitioner No.2 and one Shri Manish Bhasin made their voluntaiy statement under Section 108 of the Customs Act, 1962 on 11^ March, 1998 and 18*^
March, 1998 respectively. In discharge of the alleged liability of payment
CRLM,a 771/2011 2011:DHC:9313 towards the customs duty the Petitioners deposited two cheques. Cheque bearing No. 41823 dated 11^^ March, 1998 for Rs. 10 lakhs was encashed however the other cheque bearing No. 418244 dated 18^^ March, 1998 for
Rs. 30 Lakhs was dishonoured with the remarks "insufficient funds". The
Petitionersthereafter deposited Rs. 4,00,578/- and Rs. 14,76,000/- i.e. a sum total ofRs. 18,76,578/-againstthe dishonoured cheque with the Respondent.
Thus, Rs. 11,23,422/- remained to be paid against the dishonoured cheque when the legal notice dated 13^ April, 1998 demanding the entire sum ofRs.
30 lakhs was served upon the Petitioners. Pursuant to the serving of notice the Respondents filed the complaint on the 29^ May, 1998 which was barred by limitation. The Petitioners in the meantime filed an appeal before the
Customs, Excise and Service Tax Tribunal, Appellate Tribunal, New Delhi challenging the order of the Department and the demand made. The
Tribunal vide its order dated 20*November, 2003 set aside the order against the Petitioner No.l regarding under valuation and evasion of customs duty.
Learned Tribunal also directed the Respondents to refund the entire amount paid by the Petitioners. In compliance of the order of the Tribunal the
Respondent refunded the entire amount of Rs. 18,76,578/- and Rs. 10 lakhs to the Petitioner. Pursuant to the order of the Appellate Tribunal the
CRLM,C, 771/2011 e Petitioner moved an application under Section 245 Cr.P.C. for discharge on the 9* June, 2005 which was dismissed vide order dated 23*^^ April, 2007 primarilyon the ground that the Magistrate did not have power to review the summoning order passed by him. It is the grievance of the Petitioner that despite the order of the Tribunal the Respondents did not withdraw the complaint. Since no legal liability or debt existed against the Petitioner the necessary ingredients of Section 138/142 of the N.I. Act were missing.
On filing of the present petition a notice was issued to the
Respondents. The Respondents sought time to file reply. Initially it was stated that the file related to the ICD TKD and thus it was taking time.
Finally on 14^ July, 2011 it was stated the file of the Department was not traceable, thus the Respondents were not in a position to verify the factum of acceptance of order dated 20^^ November, 2003 passed by the CESTAT, New Delhi. An affidavit has been filed by the Deputy Commissioner
(Legal) K.D. Tughlakabad stating that the file could not be located in the various branches of Commissionerate as the case related to the year 1998.
Thus this Court proceeded to decide the matter on the basis of averments made by the Petitioner and the order ofthe Learned CESTAT.
The order of the Learned CESTAT has become final. In view of the
18.08.2011 By this petition the Petitioner seeks quashing of criminal complaint
No. 3455/2001 under Sections 138/141/142 of the Negotiable Instruments
Act (in short N.I. Act) pending before the Court of Learned Metropolitan
Magistrate Shri Ai'vind Bansal, Patiala House, New Delhi.
The facts giving rise to the filing of the present petition are that the
Respondent fded a complaint alleging therein that the Petitioner No.l evaded the customs duty to the tune of Rs. 40 lakhs and in this respect, Petitioner No.2 and one Shri Manish Bhasin made their voluntaiy statement under Section 108 of the Customs Act, 1962 on 11^ March, 1998 and 18*^
March, 1998 respectively. In discharge of the alleged liability of payment
CRLM,a 771/2011 2011:DHC:9313 towards the customs duty the Petitioners deposited two cheques. Cheque bearing No. 41823 dated 11^^ March, 1998 for Rs. 10 lakhs was encashed however the other cheque bearing No. 418244 dated 18^^ March, 1998 for
Rs. 30 Lakhs was dishonoured with the remarks "insufficient funds". The
Petitionersthereafter deposited Rs. 4,00,578/- and Rs. 14,76,000/- i.e. a sum total ofRs. 18,76,578/-againstthe dishonoured cheque with the Respondent.
Thus, Rs. 11,23,422/- remained to be paid against the dishonoured cheque when the legal notice dated 13^ April, 1998 demanding the entire sum ofRs.
30 lakhs was served upon the Petitioners. Pursuant to the serving of notice the Respondents filed the complaint on the 29^ May, 1998 which was barred by limitation. The Petitioners in the meantime filed an appeal before the
Customs, Excise and Service Tax Tribunal, Appellate Tribunal, New Delhi challenging the order of the Department and the demand made. The
Tribunal vide its order dated 20*November, 2003 set aside the order against the Petitioner No.l regarding under valuation and evasion of customs duty.
Learned Tribunal also directed the Respondents to refund the entire amount paid by the Petitioners. In compliance of the order of the Tribunal the
Respondent refunded the entire amount of Rs. 18,76,578/- and Rs. 10 lakhs to the Petitioner. Pursuant to the order of the Appellate Tribunal the
CRLM,C, 771/2011 e Petitioner moved an application under Section 245 Cr.P.C. for discharge on the 9* June, 2005 which was dismissed vide order dated 23*^^ April, 2007 primarilyon the ground that the Magistrate did not have power to review the summoning order passed by him. It is the grievance of the Petitioner that despite the order of the Tribunal the Respondents did not withdraw the complaint. Since no legal liability or debt existed against the Petitioner the necessary ingredients of Section 138/142 of the N.I. Act were missing.
On filing of the present petition a notice was issued to the
Respondents. The Respondents sought time to file reply. Initially it was stated that the file related to the ICD TKD and thus it was taking time.
Finally on 14^ July, 2011 it was stated the file of the Department was not traceable, thus the Respondents were not in a position to verify the factum of acceptance of order dated 20^^ November, 2003 passed by the CESTAT, New Delhi. An affidavit has been filed by the Deputy Commissioner
(Legal) K.D. Tughlakabad stating that the file could not be located in the various branches of Commissionerate as the case related to the year 1998.
Thus this Court proceeded to decide the matter on the basis of averments made by the Petitioner and the order ofthe Learned CESTAT.
The order of the Learned CESTAT has become final. In view of the
CRL.M.C 771/2011 fO said order no legal liability existed towards the Respondent for payment of the amount. In the absence of the legal liability the necessary ingredients of
Section 138 of the Negotiable Instruments Act are not made out. Thus, in my opinion it is a fit case for quashing of the impugned complaint.
Complaint is accordingly quashed. Petition is disposed of.
'ga' MUKTA GUPTA, J.
AUGUST 18,2011 CRLM,C. 771/2011 page 4 of4
Section 138 of the Negotiable Instruments Act are not made out. Thus, in my opinion it is a fit case for quashing of the impugned complaint.
Complaint is accordingly quashed. Petition is disposed of.
'ga' MUKTA GUPTA, J.
AUGUST 18,2011 CRLM,C. 771/2011 page 4 of4
JUDGMENT