Possibility Of An Afterthought Escape From Liability Cannot Be Ruled Out In Case Of Complaint U/S 138 Of N.I Act: Delhi High Court
The Delhi High Court refused to grant relief to the Petitioner for offence of Dishonor of cheque u/s 138 of Negotiable Instrument Act.
The Court ruled that whether petitioner’s employment with the accused-company was confined to maintenance of accounts or he was the Director or Authorized Signatory of accused-company and whether or not the cheque in question was signed by him or whether complainant is able to bring sufficient material before the court to rope in petitioner for the offence in question, are the aspects which can be established during trial.
The issues that arose for consideration before this Bench were:
- Whether the averments in the complaint are sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act?
- Whether continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company, is proper?
A bare perusal of chain of events, as stipulated in the complaint in question shows that against an outstanding debt/liability, the Respondent company had issued a cheque dated Dec 27, 2016, which on presentation with the bank was returned vide Return Memo dated Mar 27, 2017 with the remark “Account Blocked” and thereafter, Legal Demand Notice dated April 12, 2017 was served upon the petitioner.
Pertinently, the cheque in question was dated Dec 27, 2016. Hence, the claim of the petitioner that he was not the Director of the accused company on the date of issuance of cheque comes under the clouds.
Moreover, the complaint against theft of cheque is stated to have been registered in May, 2017 i.e. much after dishonouring of cheque by the Bank on Mar 27, 2017 and issuance of Legal Demand Notice dated April 12, 2017.
Thus, possibility of an afterthought escape from liability cannot be ruled out.
Moreover, the contents of certificate issued from the Bank of Baroda, Branch Gandhi Nagar, Ghaziabad stating that “the cheque in question did not bear signature of authorized signatory /person as per their records” are also subject to verification.
Following the decision of Supreme Court in case of Rajeshbhai Muljibhai Patel & Ors. Vs. State Of Gujarat & Anr. 2020 (3) SCC 794, wherein it was held that “When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint u/s 138 of the N.I. Act ought not to have been quashed by the HC by taking recourse to Section 482 CrPC”, the Delhi HC refuses to entertain the petition.
Case Title: Shyam S Bageshra vs State NCT of Delhi [CRL.M.C. 1792/2020 & Crl.M.A.12554/2020]
Law Point/ Statute Involved: Section 138 & Section 141 of the Negotiable Instruments Act, 1881