HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T G. P. MITTAL, J. (ORAL)
1. In these six Petitions under Section 482 of the Code of Criminal Procedure (Code), the Petitioners invoke inherent powers of this Court for quashing three criminal complaint Case Nos.363/2010 titled „Prashant Gupta v. M/s. Hitkari Industries Ltd. & Ors.‟, 365/2010 titled „Sagar Chemicals v. Hitkari Industries Ltd. & Ors.‟ and 364/2010 titled „Prashant Gupta v. M/s HItkari Industries Ltd. & Ors.‟, wherein the Petitioners were summoned as accused by an order dated 11.08.2010.
2. The case of the Petitioners is that there was some business dealings between Respondent No.1 and Petitioner Hitkari Industries Ltd. During the course of the business dealings, the Petitioner Hitkari Industries Ltd. issued certain cheques including cheque Nos.503860, 503752 and 503862 for a sum of ` 28,723/-, `50,000/- and `34,211.60 respectively. The earlier stated three cheques when presented were dishonoured as the payment in respect of these cheques was stopped. A legal notice under Section 138 of the Negotiable Instruments Act, 1881(the Act) was served upon M/s Hitkari Industries Ltd. A reply by the Petitioner dated 21.07.2010(Annexure-B) was sent to the counsel for the Respondent no.1 stating that the goods supplied by them were defective and thus there was no legal liability to honour the cheques, yet without prejudice to the rights of the Petitioners, three demand drafts bearing Nos. 038302, 038303 and 038304 for a sum of `50,000/-, `34,212/- and `28,723/- respectively all dated 21.07.2010 drawn on HDFC Bank, Surya Kiran Building, K.G. Marg were sent to the Respondent No.1 alongwith the copy of reply. It is further the case of the Petitioners that without acknowledging or mentioning the receipt of the replies to the demand notices and also the demand drafts, the Respondent No.1 proceeded to file three complaints( in respect of three cheques) under Section 138 of the Act. It is the case of the Petitioners that immediately on receipt of the summons from the court of learned Metropolitan Magistrate(“M.M.”) in the earlier said cases, the Petitioners moved an application for disposing off the complaints for the amount of three cheques and three duplicate DDs were produced before the learned M.M. which the Respondent No.1(the complainant) refused to accept. The Petitioners, therefore, pray that in view of the factual position, the Petitioners cannot be said to be guilty of committing an offence under Section 138 of the Act and the complaints are liable to be quashed. The Respondent No.1 preferred not to contest the Petition in spite of service of the notice.
3. The Petitioners have annexed the copies of three DDs which were sent along with the reply dated 21.07.2010 to the notice. The Petitioners have further given the details of the duplicate DDs which were produced in the Court on the very first date of hearing along with the application dated 29.10.2010 for dropping the proceedings.
4. Respondents have preferred not to contest the proceedings despite service of notice.
5. In the absence of any rebuttal from the First Respondent and the documentary evidence placed on record, it can be inferred that the three DDs bearing Nos. 038302, 038303 and 038304 for a sum of `50,000/-, `34,212/- and `28,723/- respectively all dated 21.07.2010 drawn on HDFC Bank, Surya Kiran Building, K.G. Marg were tendered to the Respondent No.1 and a copy of the reply dated 21.07.2010 was sent which was addressed to the Respondent No.1‟s advocate Mr. Parminder Singh Goindi. Not only this, when the factum of receipt of the DDs were concealed, duplicate DDs were tendered in the Court on the very first date of hearing. It is, therefore, evident that the Petitioners were not guilty of the offence punishable under Section 138 of the Act. Therefore, the summoning order dated 11.08.2010 and continuation of the proceedings on the basis of the three complaints on the strength of three earlier stated cheques would be an abuse of the process of the Court.
6. In the case of Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, while issuing guidelines for compounding of the offences under Section 138 of the Act, the Supreme Court laid down that if the accused tenders the amount of the cheque on the first or second hearing of the case, the compounding may be allowed by the Court without imposing costs on the accused. In the instant case, as stated above, the Petitioners tendered the amount not only on the first date of hearing but even in response to the legal notice and these averments have not been refuted by the Respondent No.1.
7. In view of the discussion above, the three Complaint Case Nos.363/2010 titled „Prashant Gupta v. M/s. Hitkari Industries Ltd. & Ors.‟, 365/2010 titled „Sagar Chemicals v. Hitkari Industries Ltd. & Ors.‟ and 364/2010 titled „Prashant Gupta v. M/s HItkari Industries Ltd. & Ors.‟ are hereby quashed.
8. Pending Applications stand disposed of.
FEBRUARY 07, 2013
pst
(G.P. MITTAL) JUDGE