w w w . L a w y e r S e r v i c e s . i n



Sharma Contracts (India) Pvt. Ltd V/S State and Others.


Company & Directors' Information:- S C I INDIA LIMITED [Active] CIN = U24110BR1984PLC001994

Company & Directors' Information:- S K CONTRACTS PRIVATE LIMITED [Active] CIN = U45400DL1986PTC025351

Company & Directors' Information:- SHARMA CONTRACTS (INDIA) PRIVATE LIMITED [Under Liquidation] CIN = U45202DL2003PTC120953

Company & Directors' Information:- S. S. E. CONTRACTS PRIVATE LIMITED [Active] CIN = U74900WB2013PTC192042

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- A B CONTRACTS PRIVATE LIMITED [Strike Off] CIN = U74899DL2000PTC105814

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- R S CONTRACTS PRIVATE LIMITED [Strike Off] CIN = U45202WB1997PTC084794

Company & Directors' Information:- J D CONTRACTS PRIVATE LIMITED [Active] CIN = U45400DL2011PTC214287

Company & Directors' Information:- D H CONTRACTS PRIVATE LIMITED [Active] CIN = U45400DL2010PTC198200

Company & Directors' Information:- N J CONTRACTS PRIVATE LIMITED [Strike Off] CIN = U74210HR2011PTC042559

Company & Directors' Information:- J P S CONTRACTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2000PTC107170

    Crl. M.C. No. 2351/2011

    Decided On, 17 January 2012

    At, High Court of Delhi

    By, THE HONORABLE JUSTICE: MR. SURESH KAIT

    For Petitioner: Mr. Subhasish Mohanty, Advocate And For Respondents: Ms. Ritu Gauba, APP for State, Mr. J.K. Bhola, Advocate. for Respondent No. 2



Judgment Text

1. Vide the instant petition, the petitioner has assailed the order dated 15.4.2011 passed by the learned Metropolitan Magistrate, Delhi whereby summons have been issued against the petitioner.

2. The facts of the case in brief are that the respondent No. 2/complainant dealt in plywood, Block board flush door, Laminates Decorative and Adhesive with terms of the sale. The petitioner approached the respondent No. 2 for the purpose of supplying of ply timer veneer of various sizes and quantity and after due negotiations, the complainant agreed to supply the same. From April, 2010 till October 9th, 2010, (with opening balance of `. 11,81,098/- as on 1st April, 2010), the petitioner purchased material against acknowledged invoices for a sum of ` .2,14,50,519/- details of which are as under:

S. No.

Sales

Bill No.

Amount

1

6th April, 2010

001

3,08,667/-

2

6th April, 2010

002

3,56,954/-

3

10th April, 2010

003

9,05.766/-

4

15th April, 2010

004

89,270/-

5

15th April, 2010

005

8,23,806/-

6

26th April, 2010

007

5,71,445/-

7

30th April, 2010

008

8,17,607/-

8

3rd May, 2010

009

14,41,683/-

9

4th May, 2010

010

17,862/-

10

4th May, 2010

011

1,15,380/-

11

5th May, 2010

012

7,62,140/-

12

11th May, 2010

014

70,549/-

13

15th May, 2010

015

19,556/-

14

18th May, 2010

016

1,89,109/-

15

19th May, 2010

017

4,39,353/-

16

19th May, 2010

018

3,61,648/-,

17

21st May, 2010

019

1,94,054/-

18

22nd May, 2010

020

1,74,270/-

19

25th May, 2010

024

6,51,507/-

20

26th May, 2010

025

13,61,424/-

21

27th May, 2010

027

5,93,691/-

22

28th May, 2010

028

3,50,650/-

23

28th May, 2010

029

8,426/-

24

3rd June, 2010

035

13,26,342/-

25

8th June, 2010

039

39,05,667/-

26

12th June, 2010

044

14,05,576/-

27

26th June, 2010

055

39,806/-

28

26th June, 2010

056

2,10,947/-

29

29th June, 2010

061

1,10,356/-

30

14th July, 2010

075

1,54,182/-

31

15th July, 2010

076

3,43,844/-

32

16th July, 2010

077

1,09,706/-

33

16th July, 2010

080

1,93,853/-

34

16th July, 2010

081

85,410/-

35

16th July, 2010

082

3,53,692/-

36

16th July, 2010

083

3,10,609/-

37

16th July, 2010

084

3,13,656/-

38

17th July, 2010

089

3,17,471/-

39

9th October, 2010

147

4,63,487/-



4. Against the supply of the material and after being approved and acknowledged, the following payments were made:

S. No.

Dated

C. No.

Amount

Remarks

1

13th April, 2010

929483

3,00,000/-

Passed

2

15th April, 2010

928912

61,591/-

Passed

3

5th May, 2010

012 (Claim)

23,813/-

Settled

4

30th May, 2010

929918

1,55,136/-

Passed

5

1st June, 2010

931501 RTGS

3,49,799/-

Recd thru RTGS

6

5th June, 2010

929967

4,99,807/-

Passed

7

18th June, 2010

929919

3,14,572/-

Recd. D/D 122059

8

5th July, 2010

929968

4,99,807/-

Recd. Thru RTGS

9

25th July, 2010

931354

4,99,807/-

Passed on 01/10/10

10

6th August, 2010

931391

4,72,762/-

Bounced 11/01/11

11

12th August, 2010

931392

4,72,762/-

Bounced 11/01/11

12

22nd August, 2010

931353

4,99,807/-

Recd. D.D/ 121984

13

22nd August, 2010

931394

7,18,285/-

Bounced 11/01/11

14

7th Sept. 2010

931395

7,00,000/-

Bounced 11/01/11

15

13th Sept. 2010

933716

4,99,807/-

Recd. D/D 121984

16

18th Sept. 2010

931396

7,37,841/-

Bounced 11/01/11

17

25th Sept. 2010

931397

7,00,000/-

Bounced 11/01/11

18

15th October, 2010

917419

28,24,754/-

Bounced 11/01/11

19

15th Nov., 2010

917420

28,24,754/-

Bounced 11/01/11

20

15th Dec., 2010

917421

28,24,754/-

Bounced 11/01/11

21

15th Dec., 2010

917586

28,24,753/-

Bounced 11/01/11

22

28th Dec., 2010

933701

7,27,474/-

Bounced 11/01/11

23

9th January, 2011

933957

4,63,487/-

Bounced 11/01/11

24

15th January, 2011

933702

7,27,474/-

Bounced 29/01/11

25

25th January, 2011

933703

7,27,475/-

Bounced 29/01/11



5. Out of 25 cheques as mentioned above, 14 cheques were dishonoured on different dates for the reasons "Exceed Arrangements"

6. The petitioner has raised a legal issue vide the instant petition that respondent No. 2 filed one complaint in regard to all the 14 cheques. Vide order dated 15.4.2011 and 2.7.2011, learned Metropolitan Magistrate has issued summons to the petitioners Nos. 1 to 3.

7. Learned counsel for the petitioner has relied upon Kershi Pirozsha Bhagvagar v. State of Gujarat and Anr. 2007 Cri.L.J. 3858, where it was observed that one complaint case can be filed maximum against three dishonoured cheques, whereas respondent No. 2 has filed the complaint case against 14 cheques.

8. I note on his submission that notice was issued in the instant petition vide order dated 2.7.2011 and the proceedings were stayed before the trial court.

9. I further note the payment schedule in respect of S.R. Enterprises and Shankar Timers, details of which are as under:

"S. No.

Cheque No.

Date

Amount

Payment Schedule

1

931391

06.8.10

4,72,762.00

15.12.10 to 30.12.10

2

931392

12.8.10

4,72,762.00

-Do- (S.R.E.)

3

931394

22.8.10

7,18,285.00

-Do- (S.R.E.)

4

917332

01.7.10

96,209.00

-Do- (Shankar Timber)

5

929965

14.8.10

4,27,771.00

-Do- (Shankar Timber.)

6

931388

25.8.10

3,73,182.00

-Do-

7

917419

15.10.10

14,12,377.00

-Do-(S.R.E.) (50%)

 

 

 

39,73,348.00

 

8

931395

7.9.10

7,00,000.00

15.01.11 to to 30.01.11 (S.R.E.)

9

931396

18.9.10

7,37,841.00

-Do-

10

931397

25.9.10

7,00,000.00

-Do-

11

931389

5.9.10

4,00,000.00

-Do-(Shankar Timber)

12

931390

25.9.10

3,86,591.00

-Do-

13

917419

15.10.10

14.12.577.00

-Do-(S.R.E.)

14

917420

15.11.10

2824754.00

 

 

 

 

71,61,563.00

 

15

917421

15.12.10

28,24,754.00

15.2.11 to 28.2.11 (S.R.E.)

 

 

Total

Rs. 39,73,348.00 Rs. 71,61,563.00 Rs. 28,24,754.00

 

Rs.1,39,59,665.00



10. Learned Counsel for the petitioner has referred to Section 219 of the Criminal Procedural Code, 1860. For the convenience, it is reproduced as under:

"(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local laws:

Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1 860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
11. Learned Counsel submits that when a person commits more offences than one of the same kind committed within a period of 12 months from the first to the last of such offences whether in respect of the same person or not, he may be charged with and tried by one trial for any number of them not exceeding three.

12. Learned Counsel further submits that the cheques in question were issued on different dates for the different transactions, therefore, each transaction is independent and if there is any default, each would have a different offence. Therefore, filing of one complaint against dishonour of 14 cheques is barred by Section 219 of Criminal Procedural Code, 1860 as referred to above.

13. On the other hand, learned Counsel for respondent No. 2 has submitted that all the cheques were given on different dates however were of the same transaction. Out of the total cheques 25 in number, only 14 were dishonoured, however remaining honoured.

14. Ld. Counsel has relied upon the case of this Court in Lalit Fabrics Private Limited v. Linkers Associates Limited 1995 Law Suit (Del) 874, wherein it is held that all the cheques were of different dates and on presentations, the said cheques were dishonoured from time to time for the reasons of "Insufficient Funds", cannot be said to lose its right to initiate criminal complaint merely on the ground that notice related to more than one cheque, such interpretation of Section 219 Criminal Procedural Code, 1860 would be contrary to the very spirit of Section 138 of Negotiable Instruments Act, therefore, the Court was of the opinion that notice in respect of more than one cheques disentitles the payee to initiate action under Action 138 of Negotiable Instruments Act.

15. Learned Counsel has further relied upon a case decided by the Andhra Pradesh High Court in B. Venkat Narendra Prasad and Anr v. State of A.P : III (2003) BC 319 wherein it was held as under"

"17. The facts of the case would go to show that the accused had a running ledger account with the 2nd respondent and the purchases and payments made by them were debited and credited in the account books which were maintained in the regular course of business. Thus, the accused-company had a single ledger account with the 2nd respondent in respect of all transactions made by the accused-company. Therefore, there is nothing wrong in filing a single complaint in respect of dishonour of several cheques. The contention of the learned Counsel for the petitioners on this aspect is thus devoid of merit."
16. And he also referred the case of Karnataka High Court in Tiruchandoor Muruhan Spinning Mills (Private) Limited v. Madanlal Ramkumar Cotton and General Merchants 2000 Law Suit (Kar) 486 where in it was held as under:

"6. Insofar as the important question raised for consideration in this petition that the provisions of Section 219 of the Cr. P.C. is attracted to the facts of the case is concerned, it is contended that cause of action for the complainant arose only after service of notice to the accused. It is pointed out that the complainant has issued a single notice calling upon the accused by way of demand to pay the cheque amount within 15 days from the date of service of notice and the accused failed to pay the cheque amount within the time stipulated under Section 138(b) of the Act and therefore the complainant filed a complaint within one month from the date of service of notice which is well within time. There is no bar for lodging a complaint for initiation of action under Section 138 of the Negotiable Instruments Act as the accused committed the offence punishable under Section 138 of the Negotiable Instruments Act. In fact it is not to his disadvantage but it is an advantage that a single complaint is lodged against the accused by the complainant. The cause of action giving raise to a complaint is upon the service of notice contemplated under Section 138(b) of the Negotiable Instruments Act and not upon the dishonour of the cheques and therefore the contention canvassed by the learned Counsel for the respondent that the provisions of Section 219 of the Cr. P.C. are not applicable to the proceeding under Section 138 of the Negotiable Instruments Act has to be accepted."
17. Learned counsel has also relied upon a case of this Court reported as Alpha Graphics v. Arjun Kohli : 148 (2008) DLT 373 wherein it was held as under:

"10. Turning to the next submission regarding one complaint being filed for as many as 20 dishonoured cheques, a reference may be made to Section 219 Code of Criminal Procedure which reads as under:

Section 219 Three offences of same kind within year may be charged together - (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local laws: Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.

11. The purport of the above provision is that where a person is accused of more than one offence of the same kind co

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mmitted within the space of twelve months he can be charged and tried at one trial for, any number of them not exceeding three. The stage for determining whether there should be more than one charge and therefore more than one trial has not yet been reached. That will be decided at the appropriate stage by the learned trial court as and when charges are framed. This issue should therefore be appropriately addressed to that Court. The mere reference in the complaint to 20 cheques as having been dishonoured cannot render the complaint bad in law or not maintainable. The order of the learned MM issuing summons also does not get invalidated on that score. The second submission of learned Senior counsel for the Petitioner is also rejected." and that of Bombay High Court in Rajasthani Trading Co. and Anr. v. Chemos International Limited and Anr. II (2001) BC 426 observing: "It is true that in the instant case petitioner has issued 27 cheques, 2 of which were dated 30.11.1996 while the remaining were dated 26.2.1997. Thus all the 27 cheques came to be issued to respondent No. 1, within a span of less than 3 months. It is also true that dishonour in respect of each cheque would constitute separate offence. However, it is to be borne in mind that all the 27 cheques were presented to the Bank on one and the same date and they were dishonoured by the Bank. The intimation of dishonour of the cheques was given by the Bank to respondent No. 1 on one and the same date i.e. 10.3.1997. It may further be noted that a single notice dated 19.3.1997 in respect of the dishonour of all the 27 cheques was given to the petitioners. The offence under Section 138 is deemed to have committed when the drawer of the cheques fails to make payment of the amount of money within 15 days of the receipt of the demand notice given under Section 138(b) of the Negotiable Instruments Act. It is also material to note that all the 27 cheques issued by the petitioner were in connection with a single transaction entered with respondent No. 1. Therefore, the provisions of Section 220(1) of Cr. P. Code permits the respondent No. 1 to file one complaint against the petitioners in respect of the said transaction and the petitioners can be tried together for the dishonour of 27 cheques which in fact forms the same transactions. In this respect Mr. Sathyanarayanan referred to the decision in K. Govindaraj v. Ashwin Baral : I (1998) BC 581=1998 Cri.L.J 22, which was a case in respect of 6 dishonoured cheques given to the complaint within a period of three months. The Madras High Court held that the cheques through given on different dates, were presented on one particular date as requested by the accused, and, therefore, one offence must be deemed to have been committed in respect of the single transaction. It was further held that acts of giving the cheques were merged together to form the same transaction. Therefore, the accused should be charged and tried at one trial for such an offence. It was, however, held that even otherwise Section 220(1) of the Cr. P. Code permits for such a single trial. I am inclined to adopt the same view taken by the Madras High Court. Consequently, it will have to be held that the challenge given by the petitioners in this petition cannot be sustained. The learned Magistrate must be held to be right in holding that the petitioners can be tried at a single trial for the dishonour of all the 27 cheques." 18. Keeping in view the above discussion and the settled law in view, I am not inclined to interfere with the order passed by learned Metropolitan Magistrate, dated 15th April, 2011. 19. The interim order passed is vacated and Crl.M.A. No. 8602/2011 stands disposed of as such. 20. Accordingly, Crl. M. C. No. 2351/2011 is dismissed. 21. No order as to costs.
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