Amit Saini v. Jai Prakash Mittal

1. The petitioner Jai Prakash Mittal has filed the present petition under Section 482 of Cr.P.C. to challenge the Order dated 03.03.2020 of the learned ASJ, Delhi upholding the Summoning Order dated 13.02.2019 of Ld. M.M. vide which the Petitioner has been summoned in Complaint Case under Section 138 Negotiable Instruments Act (hereinafter referred to as the N.I. Act).

2. The Respondent/ Complainant filed a Complaint under Section 138 N.I. Act against the Petitioner/Accused No. 1 Jai Prakash Mittal, Director of Kanak Developers and Infrastructure Pvt. Ltd./ Accused No. 2, in regard to two cheques issued in his favour in discharge of the liability, which were dishonoured when presented. The Appellant herein failed to make the payment despite being served with Legal Notice dated 10/12.12.2018.

3. According to the petitioner, he and the Company, accused No.2 received summons in or about April, 2019 without any documents,whereby they were directed to appear on 13.05.2019. On his appearance before the Trial Court, the case was referred to National Lok Adalat for 13.07.2019, and thereafter it was sent to the Mediation Centre. However, the case could not be settled since the petitioner denied having any liabilitytowards the Respondent.

4. The petitioner has claimed that he and his counsel for the first time went through the file at the time of admission/denial of documents under Section 294 of Cr.P.C. on 27.09.2019. The petitioner then realized that the chequeshad been issued from the account of the Company wherein the Petitioner had signed as the Director of the Company.

5. The petitioner has claimed that he had resigned from Directorship of the Company long back and even the Company has closed for past few years. In the absence of anyprosecution against the Company, the Proceedings against the Petitioner alone, cannot be sustained.

6. The petitioner took an objection that the Notice under Section 251 of Cr.P.C. dated 27.09.2019 cannot be framed as the drawer of cheque, i.e. the Company, has not been served with the Demand Notice and prosecution cannot be initiated against the Company.

7. It is asserted by the petitioner that the learned Trial Court did not consider the submissions of the Petitioner and framed the Notice under Section 251of Cr.P.C. on 27.09.2019 against the Petitioner.

8. The petitioner filed the Revision Petition before the Sessions court, to challenge the infirmity of the Summoning Orderdated 13.02.2019 and argued on maintainability of the proceedings under section 138 of N.I. Act, in the absence of the Legal Notice to the Company. The Revision Petition was dismissed vide Order dated 03.03.2020, by observing that the issues raised are mixed question of law and facts which can be ascertained through trial only.

9. The present petition is preferred against the impugned Order of Summoning dated 13.02.2019 as being passed in a mechanical manner; bad in law and based on misinterpretation of the provisions of the N.I. Act. It is submitted that the learned trial court failed to appreciate the fundamental principle of taking cognizance of the offence under section 138 of N.I. Act. The cheques in question were drawn on the account maintained by the Company. The prosecution was initiated against the Company without serving it with the mandatory Notice of demand. It is claimed that prosecution is not maintainable against the Petitioner as he is not the drawer of the cheques in question, despite which the Notice under Section 251 of Cr.P.C. has beenframed only against the Petitioner and not against the Company.

10. The petitioner has placed reliance on the case of Krishna Exports & Capital Markets Limited vs. Ila A. Agrawal &Ors., 2015 (3) JCC NI 226, to argue that the notice under section 138 is required to be given to the drawer of the cheque; on the case of Aneeta Hada vs M/s Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661 to argue that the prosecution under section 138 N.I. Act is not maintainable unless the drawer is arrayed as an accused. Reference has also been made to Jitender Vora vs. Bhavana Y. Shah &Ors.,2015 AIR SCW 5383, in support of the argument that the person who is prosecuted under Section 138 N.I. Act should have drawn the cheque on an account maintained by him.

11. The Respondent in its Reply to the petition, has submitted that this petition is not maintainable as the present petition under the garb of Section 482 of Cr.P.C. is in fact, a second revision which is barred under section 397(3) of Cr.P.C. for which reliance has been placed on the judgement of this High Court in Varinder Kaur vs. State, in CRL MC No. 3931/2017.

12. The respondent/Complainant has denied the contentions of the Petitioner and has submitted that the Complainant has prosecuted drawer of the cheque, being accused No. 1 and accused No. 2. It is submitted that Demand Notice issued to a Director is sufficient Notice to the Company as observed by the Hon’ble Supreme Court in M/s Bilakchand Ghyanchand Co. vs. A.Chinnaswami, AIR 1999 SC 2183. The Coordinate Bench of this Court has observed similarly in the judgement ofSarabjit Singh vs. State of NCT &Ors, in CRL.M.C. 2856/2015 dated 08.10.2018, which was upheld by the Hon’ble Supreme Court in M Tech Developers Pvt. Ltd. vs. State of NCT of Delhi & Ors.,SLP(Crl.) No. 15 of 2019 dated 30.07.2019.

13. It is submitted by the respondent that the law laid down in Krishna Exports (Supra) does not aid the case of the petitioner for it merely lays down that no separate Notice to Director is required if the Notice to the Company has been served under section 138 of N.I. Act. Further, the case of Aneeta Hada (Supra) also does not come to the aid of Petitioner for it lays down that arraigning of Company as an accused for maintaining prosecution against the authorised signatory of the cheque, is imperative under section 141 of NI Act, and the Company has been arrayed as accused No. 2 in the present case.Also, the facts and circumstancesin the case of Jitender Vora (Supra) are distinguishable in so much astherein the Partnership Firm on whose account the Attorney Holder had issued the cheque, was not arrayed as an accused.

14. It is submitted that the summoning Order dated 13.02.2019 is not against petitioner alone, and the respondent arrayed petitioner and M/s Kanak Developers and Infrastructures Pvt. Ltd. as accused No. 1 and 2 in the Memo of Parties filed along with his complaint.

15. Submissions heard.