Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: August 03, 2023
Decided on: September 05, 2023
+ CRL.M.C. 3386/2019, CRL.M.A. 31086/2019,
CRL.M.A. 31085/2019 and CRL.M.A 19835/21
M/S TOPLINE BUILDTECH PVT. LTD & OTHERS
..... Petitioners
Through: Mr. Puneet Mittal, Senior Advocate
with Ms. Vasudha Bajaj, Mr. Pratap
Singh, Mr. Rupendra Pratap Singh
and Ms. Sakshi Mehandiratta,
Advocates
V
STATE AND ANOTHER ..... Respondents
Through: Mr. Utkarsh, APP for the State/R-1.
Ms. Lalit Mohini Bhat and
Mr. Siddharth Agarwal, Advocates
for R-2.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
J U D G M E N T
1. The present petition is filed under section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “the code” ) to set aside the
impugned summoning order dated 23.10.2018 passed by the Court of
Sh. Vikram, MM-01, North, Rohini Courts, Delhi in Complaint Case
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bearing no 4821/2018 titled as M/S Host Finance & Investment Pvt. Ltd.
V M/s Topline Buildtech Pvt. Ltd. & Others under section 138 of
Negotiable Instruments Act, 1881 (hereinafter referred as “NI Act” ) along
with consequential proceedings.
2. The respondent no.2/complainant (hereinafter referred to as “the
respondent no 2” ) filed the present complaint by alleging that the
respondent no 2 gave a loan of Rs. 1,30,00,000/- (Rupees One Crore thirty
Lakhs only) to the petitioner no 1 which was extended in two instalments of
Rs. 70,00,000/- on 3.3.2014 vide cheque drawn on Indian Overseas Bank
and Rs. 60,00,000/- on 4.3.2014 vide Cheque drawn on Indian Overseas
Bank. The petitioner no 1 towards discharge of part liability issued cheque
bearing no 997642 dated 01.06.2018 amounting to Rs. 50,00,000/- ( rupees
fifty lakhs only) drawn on State Bank of India, Bhikaji Cama Place Branch
in favour of the respondent no.2 which was got dishonoured when presented
for encashment on the ground of “Payment Stopped by Drawer” vide cheque
returning memo dated 22.08.2018. The petitioners did not pay the cheque
amount despite the notice dated 13.09.2018 which was replied vide reply
dated 26.09.2018. Hence, the respondent no.2 filed the present complaint
under section 138 of NI Act.
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3. The Court of Sh. Vikram, MM-01, North, Rohini Courts, Delhi vide order
dated 23.10.2018 took cognizance for the offence punishable under section
138 of NI Act and accordingly summoned the petitioners. The order dated
23.10.2018 verbatim reads as under:-
Present: AR of complainant in person alongwith Ld. Counsel.
Pre-summoning evidence by way of affidavit has been tendered.
I am satisfied that the present case comes within the ambit of
Section 138 N.I.A. Act.
Complaint as well as relevant documents perused.
I am satisfied that the present complaint has been filed within the
limitation and within jurisdiction as well.
Prima facie, case seems to be made out against the accused.
Cognizance of offence is taken U/s 138 N.I. Act.
Issue summons against he accused on filing PF, RC, as well as
Speed Post for 30.01.2019.
If service of summons could not be effected by any of the above
said means then the concerned process server is directed to affix
the copy of the same on some conspicuous part of the premises
wherein the person summoned ordinarily resides, in terms of
Section 65 Cr.P.C.
4. The petitioners alleged that the respondent no.2 company is involved in
preparing false and fabricated documents to extort money and is running
extortion racket. The respondent no. 2 had filed a number of cases against
the petitioner no 1 in Delhi as well as in the state of Jammu & Kashmir. The
police of Jammu & Kashmir lodged FIR bearing no.69/2019 in district
Anantnag against the directors of the respondent no 2 amongst others which
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is pending for investigation. The respondent no 2 found to extort money
from the eminent persons of the society by making false complaints. During
the investigation, one Ajay Kumar Aggarwal, was arrested by the police of
District Anantnag, Jammu & Kashmir. In status report filed before the court,
it was categorically mentioned that the respondent no 2 had filed fake and
false complaints before various Courts in District Anantnag and Kulgam.
The authorized representative of the respondent no 2 namely Pankaj Jain is
on anticipatory bail. The petitioner no 2 had preferred an writ petition
(Criminal) bearing no. 2322/2019 before the High court of Jammu &
Kashmir at Srinagar seeking constitution of SIT and to monitor investigation
of FIR bearing no 69/2019.
4.1 The authorized representative of the respondent no.2 had filed a similar
case with respect to the cheques bearing no 997643 and 997644 under
section 138 of NI Act and the summoning order was stayed by this Court
vide order dated 30.05.2019. The petitioners stated that in September, 2014
four cheques bearing nos. 997642, 997643, 997644 and 997645 belonged to
the petitioner no 1 were found to be stolen. The petitioner no 2 on behalf of
the petitioner no 1 fearing misuse of undated signed blank cheques directed
its banker that any payment against these cheques be stopped. The
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petitioner no 2 on behalf of petitioner no 1 also wrote a complaint to the
Station House Officer, Police Station Mehrauli, New Delhi on 27.9.2014
informing that the four cheques bearing nos. 997642, 997643, 997644 and
997645 of State Bank of India have been stolen and said information was
recorded vide NCR bearing no 1361/2014 dated 01.10.14. The petitioners no
1 and 2 were shocked after receipt of legal notice dated 28.09.2018 on
behalf of Pankaj Jain, Director of M/s Host Finance and Investment Pvt. Ltd.
under section 138 of NI Act wherein it was alleged that the cheque bearing
no 997645 allegedly issued by the petitioner no l to the respondent company
for the discharge of a debt or liability amounting to Rs. 75 lakhs deposited
by respondent with J&K Bank, Branch Office at Cheeni Chowk, Anantnag,
Kashmir was dishonoured by the bankers of the petitioner no l for the
reasons "insufficient funds" and threatened to initiate complaint case under
section 138 NI Act against petitioner no 1. The cheque bearing no 997645
was one of the 4 cheques which were found missing/stolen from the office
of the petitioner no l office in 2014 and in respect of which NCR No.
1361/2014 dated 01.10.2014 was registered at PS Mehrauli, New Delhi. The
petitioner no l vide its reply dated 20.09.2018 placed correct facts. M/s Host
Finance and Investment Pvt. Ltd. through its manager Sania Fayaz filed a
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private criminal complaint no 194/2018 against the petitioners no 1 and 2
before the court of CJM, Anantnag on the basis of the aforesaid cheque
bearing no 997645 seeking to take cognizance against the office bearers of
the petitioner under sections 420/109/120B/34/403/406/506/507 Ranbir
Penal Code. The petitioner no 1 came to know that M/s Host finance and
Investment Pvt. Ltd. company and its representatives had criminally
misappropriated / stolen 4 cheques including the cheque bearing no 997645.
The petitioner no l filed a complaint dated 19.09.2018 on 26.09.2018 vide
entry no 57B before SHO, Police Station Mehrauli and accordingly FIR no
732/2018 under section 380 IPC dated 12.11.2018 was got registered against
Pankaj Jain and Ashok Kumar, Directors of M/s Host Finance and
Investment Pvt. Ltd. M/s Host Finance and Investment Pvt. Ltd. on
15.10.2018 filed a complaint case no 219/2018 under section 138 NI Act on
basis of dishonour of cheque no 997945 titled Pankaj Jain V Topline
Buildtech Pvt. Ltd. & Others" before the District Mobile Magistrate Traffic,
Anantnag District Courts, Kashmir, arraying the petitioner no l as accused
but none of its directors / office bearers was arrayed as a party nor there is
any specific allegation against its directors / office bearers in the said
complaint. The High Court of Jammu and Kashmir at Srinagar vide order
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dated 11.12.2018 passed in Cr.M.C. no 479/2018 stayed the proceedings in
the private criminal complaint no. 194/2018. The High Court of Jammu and
Kashmir at Srinagar vide order dated 03.04.2019 passed in Cr.M.C. no
92/2019 stayed the proceedings in complaint case bearing no 219/2018. The
petitioners no 1 and 2 were shocked to receive another legal notice dated
01.01.2019 which was issued on behalf of Golden Equity Pvt. Ltd. under
section 138 of NI Act on basis of cheque bearing no 997643 amounting to
Rs.1,00,00,000 dated 20.12.2018 and the cheque bearing no 997644
amounting to Rs. 75,00,000 dated 20.12.2018. These cheques were 2
cheques out of the 4 cheques which were missing/stolen from the office of
the petitioner no 1 and regarding which NCR bearing no 1361/2014 dated
01.10.2014 was registered in PS Mehrauli and later on FIR no. 732/2018
under section 380 IPC dated 12.11.2018 against the directors of respondent
no 2 i.e. Mr.Pankaj Jain and Ashok Kumar was lodged. The petitioners
replied notice dated 01.01.2019 vide reply dated 12.01.2019 wherein
mentioned true and correct facts. M/s. Golden Equity Pvt. Ltd. through
Pankaj Jain, who is the director of respondent no.2 filed another complaint
bearing no 654/2019 before the court of M.M.-01, Rohini Courts with
respect to the cheques bearing no 997643 and 997644 under section 138 of
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NI Act and after taking cognisance summons were issued to the present
petitioners. The petitioners have challenged summoning order before this
Court of Delhi in Crl. Misc. Petition bearing no 3008/2019 wherein vide
order dated 30.05.2019 summoning order in the complaint bearing no
654/2019 was stayed.
4.2 The petitioners impugn complaint bearing no. 4821/2018 and
summoning order dated 23.10.2018 on various grounds. The respondent has
concealed the fact that the authorized representative of the respondent no 2
had also filed complaint case bearing no 219/2018 titled as Pankaj Jain V
Topline Buldtech Pvt. Ltd. & others before the court of CJM, Anantnag with
respect to dishonour of one of the cheques bearing no 997645 which was
stolen from the office of the petitioner no l in the year 2014 and the High
Court of Jammu and Kashmir at Srinagar stayed the trial in the said
complaint case vide order dated 03.04.2019. This court in Crl. MC bearing
No. 3008/2019 titled as M/s. Topline Buildtech Pvt. Ltd. V State and others
vide order dated 30.05.2019 stayed proceedings in respect of cheques
bearing no. 997643 and 997644 under section 138 of NI Act. The cheque in
question bearing no 997642 is one of the four stolen cheques against which
FIR was lodged in PS Mehrauli. There is no specific details and allegations
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against any of the directors or office bearers of the petitioner no l. The
authorized representative of the respondent filed the present complaint only
with the sole motive to extort money from the petitioners without any
legally enforceable debt against them. The respondent had not mentioned or
enclosed any document or agreement against which the alleged loan was
tendered to the petitioner no l. The present complaint filed is mala fide in as
the respondent and M/S Host Finance and Investments Pvt. Ltd. are sister
concern companies and Pankaj Jain is prosecuting person in both companies
against whom FIR bearing no 732/2018 under section 380 IPC dated
12.11.2018 was registered in PS Mehrauli. The petitioners made following
prayers:-
It is therefore most respectfully prayed that this Hon'ble Court
may graciously be pleased to:
(a) Set aside summoning order dated 23.10.2018 passed by
Sh. Vikram Ld. MM-01, North, Rohini Court, Delhi
(b) Quash the Complaint case no. 4821/2018, titled "M/s Host
Finance & Investment Pvt. Ltd. Vs. Topline Buildtech Pvt. Ltd. &
others" pending before Sh. Vikram Ld. MM-01, North, Rohini
Court, Delhi and all other proceedings emanating from the above
said complaint case; and
(c) Pass any other or further orders as this Hon'ble Court may
deem fit and appropriate in the facts and circumstances of the
case.
5. The learned Senior Counsel for the petitioners argued that it is evident
from the reply dated 26.09.2018 that the cheques bearing no 997642was
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stolen/lost in the year 2014 from the office of the petitioner no 1 and for
which a complaint was made to the SHO, PS Mehrauli on 27.09.2019 vide
NCR bearing no 1361/2014 dated 01.10.2014 under section 155 of the Code
regarding 4 stolen cheques including cheque basis of present complaint. The
petitioner no1 also issued instructions of “Stop Payment” to its banker in
respect of the stolen cheques. The stolen cheques do not fall under ambit of
“negotiable instrument‟.
5.1 The High Court of Jammu & Kashmir in Writ Petition (Criminal)
bearing no.2322/2019 had directed to constitute SIT to carry out and
monitor investigation in FIR bearing no 0069/2019 under sections
420/467/468 Ranbir Penal Code registered at P.S. Anantnag against the
officials of respondent no 2. Pankaj Jain who is the Director of the
respondent no 2 and other companies had filed the cases against the
petitioners to extort money from them. The learned Senior Counsel also
raised other issues during arguments.
6. The respondent no 2 filed reply to petition.
7. The Supreme Court in Kusum Ingots & Alloys Ltd. V Pennar Peterson
Securities Ltd. & others, (2000) 2 SCC 745 laid down the following
ingredients for taking cognizance under sections 138 NI Act:-
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(i) A person must have drawn a cheque on an account maintained
by him in a bank for payment of a certain amount of money to
another person from out of that account for the discharge of any
debt or other liability
(ii) That cheque has been presented to the bank within a period of
six months from the date on which it is drawn of within the period
of its validity, whichever is earlier
(iii) That cheque is returned by the bank unpaid, either because of
the amount of money standing to the credit of the account is
insufficient to honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement made
with the bank
(iv) The payee or the holder in due course of the cheque makes a
demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within 15 days of
the receipt of information by him from the bank regarding the
return of the cheque as unpaid
(v) The drawer of such cheque fails to make payment of the said
amount of money to the payee or the holder in due course within
15 days of the receipt of the said notice
(vi) The complaint is to be filed within one month from the date of
expiry of the 15 days from the receipt of the notice.
8. The Supreme Court in Pepsi Foods Ltd. V Special Judicial Magistrate
regarding summoning observed as under:-
28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have the
criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his mind
to the facts of the case and the law applicable thereto. He has to
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examine the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof and would
that be sufficient for the complainant to succeed in bringing
charge home to the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary evidence before
summoning of the accused. The Magistrate has to carefully
scrutinize the evidence brought on record and may even himself
put questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or otherwise
and then examine if any offence is prima facie committed by all or
any of the accused.
9. The Supreme Court in Tedhi Singh V Narayan Dass Mahant , Criminal
Appeal No 362 of 2022 (arising out of SLP (Crl) No.1963 of 2019) decided
on referred Basalingapa V Mudibasappa, (2019) 5 SCC 418 wherein it
was observed as under:-
25. We having noticed the ratio laid down by this Court in the
above cases on Sections 118(a) and 139, we now summarise the
principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted Section 139 of the
Act mandates a presumption that the cheque was for the
discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the probable
defence. The standard of proof for rebutting the presumption is
that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely
on evidence led by him or the accused can also rely on the
materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of probabilities can
be drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which
they rely.
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10. The petitioners primarily impugned summoning order dated 23.10.2018
on the grounds that the cheque bearing no 997642 which is basis of present
complaint was found to be stolen/lost in the year 2014 along with two other
cheques bearing no 997643, 997644 and 997645 and these cheques were
prepared in November, 2013 to meet out emergency expenses of petitioner
no 1 and were kept at the offices of petitioner no l. The petitioners to
substantiate plea of lost cheques also stated additional facts that the
petitioner no 2 on behalf of the petitioner no 1 fearing misuse of these
undated signed blank cheques has intimated vide letter dated 27.09.2014 to
its bankers directing that any payment against these cheques be stopped and
also wrote a complaint to the SHO, Police Station Mehrauli, New Delhi on
27.9.2014 and thereafter First Information Report in respect of non-
cognizable offence under section 155 of the Code bearing NCR No.
1361/2014 dated 01.10.2014 was also recorded. The petitioners no 1 and 2
also receipt of legal notice dated 28.08.2018 on behalf of Pankaj Jain,
Director of M/s Host Finance and Investment Pvt. Ltd. under section 138 of
NI Act in respect to cheque bearing no 997645 which was allegedly
dishonoured by the bankers of the petitioner no l on ground of "insufficient
funds". M/s Host Finance and Investment Pvt. Ltd. filed a private criminal
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complaint no 194/2018 against the petitioners no 1 and 2 before the court of
CJM, Anantnag on the basis of cheque bearing no 997645 under sections
420/109/120B/34/403/406/ 506/507 Ranbir Penal Code. It was alleged that
M/s Host finance and Investment Pvt. Ltd. company and its representatives
had criminally misappropriated / stolen 4 cheques including the cheque
bearing no 997645. FIR bearing no 732/2018 under section 380 IPC dated
12.11.2018 was got registered against Pankaj Jain and Ashok Kumar,
Directors of M/s Host Finance and Investment Pvt. Ltd. M/s Host Finance
and Investment Pvt. Ltd. on 15.10.2018 also filed a complaint case no
219/2018 under section 138 NI Act on basis of dishonour of cheque no
997945 titled Pankaj Jain V Topline Buildtech Pvt. Ltd. & others before the
District Mobile Magistrate Traffic, Anantnag District Courts, Kashmir
against the petitioner no l. It is also pleaded that the High Court of Jammu
and Kashmir at Srinagar vide order dated 11.12.2018 passed in Cr.M.C. no
479/2018 stayed the proceedings in the private criminal complaint no.
194/2018 and vide order dated 03.04.2019 passed in Cr.M.C. no 92/2019
stayed the proceedings in complaint case bearing no 219/2018.
11. The Supreme Court in Raj Kumar Khurana V State of (NCT of
th
Delhi) & another, Criminal Appeal No 913 of 2009 decided on 5 May,
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2009 considered issue whether return of a cheque by the bank on the ground
that it was reported lost by the drawer would attract the penal provisions
contained in Section 138 of the Negotiable Instruments Act, 1881. It was
observed that the parameters for invoking the provisions of Section 138 of
the Act being limited, the refusal on the part of the bank to honour the lost
cheque would not bring the matter within the provisions of Section 138 of
the Act. The Allahabad High Court in Bobby Anand @ Yogesh Anand V
State of U.P. and another, Application under section 482 bearing no 7631
th
of 2008 decided on 17 May, 2023 after referring Raj Kumar Khurana V
State of (NCT of Delhi) observed that if a cheque is returned by the bank on
the ground "cheque reported lost" would not bring the matter within the
penal provisions of Section 138 N.I. Act. A coordinate bench of this court
in Rajeev Ranjan Sinha V Sushil Kumar Saxena, 2022 SCC OnLine Del
1577 decided on 26-5-2022 observed that it was for the petitioner to prove
the plea that the cheque had been reported „lost‟. He would have an
opportunity to cross-examine the bank officials to establish that they had an
obligation to have refused honouring the cheque on the ground that the
cheque had been reported „lost‟ by the drawer, to get the benefit of the
decision in Raj Kumar Khurana V State of (NCT of Delhi), (2009) 6
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SCC 72. It was further observed that the trial Court was right in holding that
the loss of cheque could be ascertained only during trial.
12. It is apparent that cheques bearing no 997642 which is basis of present
complaint is dated 01.06.2018 while the petitioner no 1 through the
petitioner no 2 intimated its banker vide letter dated 27.09.2014 to stop any
payment against these cheques and made a complaint to the SHO, Police
Station Mehrauli, New Delhi on 27.9.2014 vide NCR No. 1361/2014 dated
01.10.2014 i.e. much prior from alleged dates of issuance of cheque bearing
no 997642. However plea of the petitioners that cheque bearing no 997642
which is basis of present complaint was lost in year 2014 much prior to
issuance of the cheque in favour of the respondent no 2 can only be
established during trial and on basis of the evidence to be led by the
petitioners and the respondent no 2. The proposed defence of the petitioners
as detailed hereinabove cannot be legally considered at time of taking
cognizance by the trial court which is obliged to take cognizance merely on
basis of allegations as made in complaint and pre summoning evidence if
any.
13. On the basis of pleas as taken in the present petition and arguments
advanced by the learned Senior Counsel for the petitioners, the summoning
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order dated 23.10.2018 cannot be recalled. The petition is devoid of any
merit. Hence, the present petition along with pending applications, if any,
stands dismissed. Interim stay, if any, stands vacated. However, the
petitioners shall be at liberty to raise all the pleas and contentions, as
mentioned in the petition during the trial.
DR. SUDHIR KUMAR JAIN, J
SEPTEMBER 05, 2023
j/am
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