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Judgment
Hon''ble Mr.Justice V. Jagannathan
In this petition u/s 482 of Cr.P.C., quashing of the proceedings in C.C.No. 35463/10 on the file of the learned XIV Addl. C.M.M., Bangalore, is sought by the petitioner.
The brief facts are that, the respondent filed a private complaint alleging offence u/s 138 of the N.I. Act by the petitioner herein and the trial court took the cognizance of the case and directed case being registered against the petitioner and issue of summons to him. It is this order chat is called in question by the petitioner. So far as the complaint is concerned, it is the case of the respondent that, the accused entered into a Memorandum of Understanding with the complainant on 15.3.2007 for development of certain lands and in pursuant to the MOU. the complainant paid Rs. 2,50,00,000/- (Two crores fifty lakhs) towards the interest free refundable security deposit to the accused and the receipt of the said amount has been acknowledged by the accused. On 31.1.09 the complainant issued a notice to the accused terminating the MOU and praying to refund the security deposit. Effort was also made to take up the matter before the arbitrator and the accused admitted the legal liability to repay the security deposit and an agreement was entered into between the parties on 14.7.2009. Under the said agreement the cheques were to be deposited with Escrow Agent and 10 cheques were deposited with the said agent. The Escrow Agent handed over the cheques to the complainant and out of the 10 cheques, one cheque for Rs. 20 lakhs was honoured by the accused and the remaining cheques on presentation were dishonoured and this was followed by the complainant issuing a legal notice to the accused on 12.11.09. The accused failed to respond to the legal notice, but however did not deny the deposit of the cheques mentioned in the complaint with the Escrow Agent. As the cheques were dishonoured on 14.10.2009 and the accused did not pay the amount under the said cheques to the complainant despite receiving the notice, the complainant had no other go than to file the private complaint u/s 200 of the Cr.P.C. alleging offence u/s 138 of the N.I. Act by the accused.
Learned counsel Sri. Ajesh Kumar for the petitioner submitted that the court below could not have taken the cognizance of the offence and entire proceedings are liable to be quashed for the following reasons.
The first contention put forward is that, the cheques were presented by the complainant and those cheques were obtained by unlawful means contrary to the terms of the agreement between the parties and therefore Section 58 of the N.I. Act comes into play. Secondly, it is submitted that the trial court did not consider the complaint averments in detail but had passed the order stating that the complaint was perused and this procedure followed is also contrary to law. It is then argued that the power of attorney has not signed the document and the person who referred to the complaint before the court below was not confident to act as power of attorney on behalf of the respondent. The next contention put forward is that, in respect of the cheques mentioned in the complaint, there ought to have been separate cases registered and the trial court could not have taken all those cheques for consideration on the basis of the only complaint that is lodged by the respondent. Reference was made to Sections 219 and 220 of the Cr.P.C. in this connection and it was contended that the accused at the best could have been prosecuted against a maximum of three cheques only and for this reason also, the trial court order and proceedings are liable to be quashed. The decisions referred to in support of the above submissions are the ones reported in Damodar S. Prabhu Vs. Sayed Babalal H., , M/s Printo Stick and another Vs. M.L. Oswal, . Sri K. Venkataramaiah and Others Vs. Sri Katterao, , Sri K. Venkataramaiah and Others Vs. Sri Katterao, , Maharaja Developers and Another Vs. Udaysingh Pratapsinghrao Bhonsle and Another, .
Learned counsel for the petitioner therefore argued that notwithstanding the stage at which the case is now pending before the trial court, there can be no impediment for this court to interfere at this stage and quash any proceedings.
On the other hand, learned counsel Smt.Natina Mayegowda for the respondent at the outset submitted that the case is at the stage of cross-examination of the complainant and it is at this stage the accused has approached this court, in this petition. It was then submitted that the receipt of Rs. 2,50,00,000/- is not disputed by the accused and even as per the terms of the agreement entered into between the parties, the petitioner was only entitled to one Lime extension of time for two payments of all the cheques and that extension of time would be available to the petitioner subject to the petitioner having made payment under any two of the cheques mentioned in the settlement agreement dated 14.7.09 and as this condition was not complied by the petitioner, the respondent had no other go than to approach the court below u/s 200 Cr.P.C. following dishnour of cheques. As far as the competency of the person swearing to the complaint contents are concerned, submission made is that, the company also can have any of its officers or officials to swear to the affidavit and power of attorney was also executed authorising the respondent and therefore no error can be found even with regard to the sworn statement recorded by the court below is concerned.
As far as the necessity for filing more than one complaint is concerned, learned counsel for the respondent referred to this court''s decision reported in Tiruchandoor Muruhan Spinning Mills (Private) Limited and Others Vs. Madanlal Ramkumar Cotton and General Merchants, to contend that Section 219 of Cr.P.C. is not applicable to the proceedings u/s 138 of the N.I.Act and reliance was also placed on the decision of the Delhi High Court in the case of Indian Sulphacid Industries Limited Vs Emmsons International Limited to contend that Section 220(1) of the Cr.P.C. provides that, if, one series of acts so connected together as to form the same transaction, more offences than one committed by the same person, he may be charged with and fried at one trial for every such offence. As far as the capacity of representing before the trial court on behalf of the company is concerned, reliance is placed on the Apex Court decision reported in National Small Industries Corporation Ltd. Vs. State (NCT of Delhi) and Others, and Shankar Finance and Investments Vs. State of Andhra Pradesh and Others, to contend that the company can be represented by an employee or even by a non employee authorized and empowered to represent the company either by a resolution or by a power of attorney.
On the strength of the aforesaid decisions and submissions made learned counsel for the respondent sought, for the petition being dismissed.
Having thus heard both sides, the only point for consideration is:
Whether the petitioner has made out a case for thus court to quash the proceedings pending before the court below?
At the outset, it has to be mentioned that the ease is now at the stage of recording of evidence and the complainant has already been examined in chief and he has to be cross examined by the petitioner herein. Secondly, the trial court has perused the complaint and has opined that the facts sworn in the complaint prima facie indicates commission of the offence u/s 138 of the N.I.Act. The sworn statement of the power of attorney holder, viz., G.V. Chandrasekhar also indicates at this stage that the accused had issued 10 cheques for Rs. 2,50,00,000/- drawn on Punjab & Sind Bank, J.C.Road, Bangalore and out of the ten cheques, only one cheque for Rs. 20 lakhs was honoured and the remaining cheques came to be dishonoured. Issuance of legal notice to the accused is also spoken to by the power of attorney holder.
Therefore, it cannot be said that the court below has not considered the averment made in the complaint. As far as the contention urged concerning the competency of the power of attorney holder is concerned, the Apex Court decisions referred to by the learned counsel for the respondent comes to the assistance of the complainant and no defect can be found in the complainant''s case on that, ground urged by the petitioner''s counsel. As far as Sections 219 and 220 of the Cr.P.C. are concerned, this court: in the case of Tiruchandoor Muruhan Spinning Mills (Private) Limited and Others Vs. Madanlal Ramkumar Cotton and General Merchants, has held that the provisions of Section 219 of the Cr.P.C. are not applicable to the proceedings u/s 138 of the N.I.Act. The Delhi High Court in the very recent decision decided on 28.7.2011 in the case of Indian Sulphacid Industries Limited Vs. Emmsons International Limited after considering the provision to Sections 218, 219 and 220 of Cr.P.C., has also taken the view that Sections 219 and 220 are exception to Section 218(1) of the Cr.P.C. and section 220(1) of the Cr.P.C. provides that if in one series of acts which formed part of the same transaction to be fried an one trial and more offence than one are committed by the same person, he may be charged with and tried for every such offence. In the case before it, on facts the Delhi High Court, found that the complainant had alleged that four cheques issued by the petitioner company on presentation were dishonoured with remarks ''payment slopped by the drawer'' and all the four cheques were the subject matter of the complaint and all the cheques which were dishonoured also formed part of the same transaction and in the light of the said fact, the Delhi High Court took the aforesaid view.
In the case on hand also, the complaint mentions, number of cheques on presentation were returned with the identical remark ''stop payment'' and the petitioner is the only accused who had entered into agreement with the complainant and the receipt of the amount of Rs. 2,50,00,000/- is also admitted by the accused and so also non payment of the said amount to the complainant. In the above circumstances, in my view, the petitioner has not made out a ease for this court to interfere as the evidence is in progress and the complainant has been examined in chief and he has to be cross examined by the accused. The contentions taken by the petitioner''s counsel can very well be urged before the trial court on the merits of the ease and the trial court to consider the same in accordance with law.
The petition is therefore rejected. The observations made herein above however shall not any way affect the case of the petitioner on merits.