CASE TITTLE:HARPREET SAHNI & ANR. V. SHRICHAND HEMNANI and Anr
CASE NO:CRL.M.C. 6094/2022 & CRL.M.A. 23877/202
ORDER ON:15.05.2024
QUORUM:JUSTICE NAVIN CHAWLA
FACTS OF THE CASE:
The above petitions have been filed under Section 482 of the Code Of Criminal Procedure, 1973 challenging the Order dated 20.12.2019 passed by the learned Metropolitan Magistrate, Delhi herein, under Section 138 of the Negotiable Instruments Act, 1881, As these petitions had common questions of law and facts, these are being considered and disposed of by Way of this common judgment.
The facts leading to the present petition in question is that The above complaint cases have been originally filed by the respondent, It was alleged That the accused nos.3 to 10 came in contact of the Respondent and represented and assured them about their position,based on their representation, the respondent have extended loans to the accused, in the joint name of accused no.1-Mother’s Pride Punjabi Bagh and the accused no.2-Presidium Eduvision Trust. It is alleged that the accused were to pay interest at the rate of 19.5% per annum on the loan amount for the period of the loan. It is alleged that till the month of June, 2018, accused nos.1 to 10 paid interest on the said loan, however, thereafter they defaulted in payment of interest, It is claimed that on 01.12.2018, when the respondent deposited the cheques issued by the accused nos.1 to 10 for repayment of the loan, the same were dishonoured with the remark „Funds Insufficient‟. It is averred that the respondent thereafter issued respective legal notices to the accused nos.1 to 10 to repay the cheque(s) amount, however, the same was not paid. The respondent in the original complaint also pleaded and made similar allegations,however It appears that in the pre-summoning evidence, the respondent(s) summoned the Manager of Axis Bank, Rajouri Garden, Delhi as a witness before the learned Trial Court to Give the pre-summoning evidence on the Bank Account Maintained by the accused no.2 therein, that is, Presidium Eduvision Trust, with the said bank. It is stated that the official from the Axis Bank appeared before the Learned Trial Court and placed all the account related records,The respondent(s) claimed that for the first time, the respondent(s), from the Trust Deed and the Account Opening Form of the Presidium Eduvision Trust, came to know That the said Trust had three Trustees, that is, the petitioners Herein and the accused no.9 in the Complaint cases. The Respondent(s) claimed that these Trustees were fully involved in The subject transaction, however, had concealed that they were The Trustees of the accused no.2 Trust. The respondent(s) then filed an application under Section 319 of the Cr.P.C. praying for impleadment of the petitioners as additional accused in the Complaint cases. The respondent(s further claimed that as notice under Section 138 of the NI Act has been served on the Trust through its Trustees, hence the requirement of Proviso (b) to Section 138 of the NI Act hasbeen duly complied with, by the respondent. The said application was allowed by the learned Trial Court by the Impugned Order, and the Trust and its three Trustees have been summoned as accused in the Complaint Cases filed by the respondent. .The petitioners have filed the present petitions being aggrieved Of the said Order which summons the petitioners as accused in the Above Complaint Cases.
LEGAL PROVISIONS:
Section 138 of the NI penalizes the dishonour of any cheque which has been issued in the discharge of the whole or part of “any debt or other liability”
Section 141 of the NI Act talks about the offences by company
CONTENTIONS OF PETITIONER:
The petitioners through their counsel submits that for Maintainability of a complaint under Section 138 of the NI Act read With Section 142 of the NI Act, service of notice under Proviso (b) to Section 138 of the NI Act on the accused is mandatory. The counsel further submits That in the Complaint Cases, admittedly, the alleged demand notice Dated 28.01.2019 was not addressed to the petitioners in their Individual capacity. Counsel further submits that, therefore, the complaint(s)Against the petitioners are not maintainable and the petitioners cannot Be summoned in the same. In support, the counsel places reliance on the Judgments of supreme Courts in Ashok Shewakramani & Ors. V. State of Andhra Pradesh & Anr.,and the judgment of The High Court of Gujarat in Somesh Sarjivan Jain v. State of Gujrat & Anr
The counse further submits that merely by amending the complaints and Now, in the relevant paragraphs, making averments against inter alia The petitioners, and by merely changing the number of the accused, the Respondent(s) cannot be said to have satisfied the requirements of Section 141 of the NI Act. The counsel further submits that, therefore, even otherwise The Complaint Cases, as against the petitioners, are liable to be Dismissed.
CONTENTIONS OF THE RESPONDENT:
The respondents through their counsel Submits that the Trust (the accused no.2 in the Complaint Cases) had Been issued the legal/demand notice dated 28.01.2019, to be served Through its Trustees. The respondent(s) were not aware of the Trustees Of the said Trust till the deposition of the official of the Axis Bank.counsel further Submits that though the respondent(s) had dealt with the petitioners, They were not aware of their status as Trustees of the accused the counsel further submits that the notice addressed to the Trust through its Trustees,Is sufficient notice to the Trustees themselves in their individual Capacity as well. In support, the counsel also placed reliance on the judgment of the Supreme Court in Kirshna Texport & Capital Markets Ltd. V. Ila A. Agrawal & Ors. .Placing reliance on the judgment of the Supreme Court in Hardeep Singh v. State of Punjab & Ors., the counsel further Submits that the purpose of Section 319 of the Cr. P.C. is to ensure that the real culprit should not get away unpunished. The counsel further submits that Once it is discovered that the petitioners are the Trustees of the Accused no.2 Trust and are also alleged to be involved in the alleged Transactions with the respondent(s), they are liable to be proceeded Against in terms of Section 141 of the NI Act.the counsel submits that the Purpose of Section 319 of the Cr. P.C. is to address such a situation. Counsel also placed reliance on the judgment of the High Court of Madras in Abraham Memorial Educational Trust v. C. Suresh Babu,, to contend that under Section 141 of the NI Act, all the Trustees of a Trust would be equally liable to be Proceeded against under Section 138 of the NI Act.
COURTS ANALYSIS AND JUDGEMENT:
On hearing both the parties and considering the legal provisions, the court observed that the only plea of the petitioners is the Lack of notice under Proviso (b) to Section 138 of the NI Act and the Purported lack of pleadings in the Complaint Cases against the Petitioners herein in their individual capacity. The court also observed that As far as the lack of notice under Proviso (b) to Section 138 of The NI Act is concerned, the said Provision requires notice to be sent to the ‘drawer’. Admittedly Notice(s) in the present Complaint Cases has been sent to the drawer,That is, the accused no.2-Trust. The court also referred few judicial presidents.The court further considered that There is no requirement for separate notice(s) to be Issued to each of the Trustees of the accused to make them Vicariously liable and to be proceeded against in terms of Section 138 Of the NI Act read with Section 141 of the NI Act. The court further observed that the notice having Been served on the Trust through its Trustees, all the Trustees are Deemed to have been duly served with the legal/demand notice(s), Thereby meeting the requirement of Proviso (b) to Section 138 of the NI Act.As far as the plea of the learned counsel for the petitioners that The respondent(s) has merely changed the number of the accused in the Complaints and there is a lack of necessary pleadings in the complaint Cases in this regard, therefore the court opined that there is no merit in the same. Therefore the court opined that, the above averments are sufficient for the purpose Of attracting Section 141 of the NI Act against the petitioners. Even Otherwise, in their capacity as Trustees of the accused no. 2, the Petitioners are officers in charge of the Trust. The petitioners shall Have to lead their defence under Section 141 of the NI Act, in case they are to escape their liability as the Trustees of the accused no.2-Trust, who is the drawer of the cheque(s) in question. Therefore the court opined that Such defence is Not to be considered by this Court or the learned Trial Court at this Stage, Hence . In view of the above, the court opined that there is no merits in the present petitions and , accordingly, dismissed the present petition.
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judgement reviewed by:Sowmya.R
