BHARAT RAM Vs. S K GUPTA

JUDGEMENT

(1.) . This order will govern the disposal of Crl.M.(M) Nos.3593, 4011, 3591 and 4042/2000 wherein identical issue arise for decision.

(2.) . S.K.Gupta, respondent No.1 is the complainant in Crl.M.(M) 3593/2000. His son Rajiv Gupta, respondent No.1 is the complainant in Crl.M.(M) 4011/2000. Radha Rani, respondent No.1 is the complainant in Crl.M.(M) 3591/2000 while Ritu Gupta, respondent No.1 in Crl.M.(W) 4042/2000. Radha Rani is the wife while Ritu Gupta is the daughter-in-law of said S.K.Gupta. Dr.Bharat Ram who has been impleaded as accused No.2 in four complaints, is the petitioner in these petitions filed under Section 482 Cr.P.C. The allegations made in four complaints barring cheque numbers are by and large identical.

(3.) . Submission advanced by Ms.Seema Gulati for petitioner was that the complaints are barred by time as they were filed much beyond the period of one month after service of demand notice(s) dated 8th December, 1997 on accused No.1/company. In support of the submission, reliance was placed on the decision in Sadanandan Bhadran Vs. Madhavan Sunil Kumar 1998 (2) JCC (SC) 91. On the other hand, contention advanced by Sh.Deepak Gandhi for respondent No.1/cbmplainant was that neither the registered envelops containing notices dated 8th December, 1997 nor ADs thereof were received back undelivered by respondent No.1 and accused No.1 company having denied receipt of said notices in its reply dated 5th May 1998, the complaints baaed on another demand notices dated 21st April, 1998 are within limitation. My attention "was drawn particularly to paras 1, 2 & 19 of said reply dated 5th May, 1998. To appreciate the respective submissions advanced, it will be profitable to refer to the material allegations made in the complaints as also the replies to the petitions, As noticed above, barring cheque numbers the allegations made in four complaints are by and large similar. Complaint Tiled by S.K.Gupta is treated as lead case for referring to the averments made in the complaints. This complaint was filed, inter alia, alleging that M/s DCM Financial Services Ltd. is a company incorporated under the Companies Act; accused Nos. 2 to 5 are its Chairman, Vice Chairman, Secretary and Chief Executive respectively and all of them are jointly and severally responsible for day-today functioning of the accused No.1 company. 'Under Bill Rediscounting Scheme' floated by accused No.1, the complainant invested certain amounts which were acknowledged by the company in its two letters both dated 20th August, 1997. Alongwith these letters the company also enclosed post dated cheques bearing Nos.022034 dated 10th November, 1997 for Rs.2,18,148 and 022028 dated 10th November, 1997 for Rs.3,27,221/- drawn on Punjab & Sindh Bank, Janpath Branch, New Delhi favouring the complainant. Subsequently, complainant received letter from accused No.1 intimating that there had been change in authorised Signatory and, therefore, two cheques be returned to enable it to issue fresh cheques in lieu thereof. Complainant returned the said cheques and two new cheques bearing Nos 023395 for Rs.3,27,221/- and 023396 for Rs.2,18,148/-, both dated 10th November, 1997 were given to him. On 23rd October, 1997 the complainant received a letter from the company not to present these two cheques. Complainant sent a letter dated 8th November, 1997 to the company informing that as the said letter did not give any reason or justification for not presenting the cheques, he will be presenting them on due dates. However, this letter was received back with report of 'refusal' on 10th November, 1997. Complainant presented both the said cheques on 25th November, 1997 for payment through Central Bank of India, Gulmbhar Park land on 28th November, 1997 they were received Back unpaid alongwith the memo dated 27th November, 1997 of the complainant's banker enclosing therewith the memo dated 26th November, 1997 issued by accused's banker. Punjab & Sindh Bank, Janpath Branch. It is further alleged'in para No.11 of the complaint that complainant thereafter sent a demand notice dated 8th December, 1997 by Registered A.D. and UPC calling upon the accused company to make payment of said two cheques. Although notice was correctly addressed but neither the envelop containing notice nor A.D. were received back and as such accused will be deemed to have been served with the said notice. In paras 12 & 13 it is also stated that on approaching the accused, complainant was asked to represen the cheques for payment which were presented on 4th April, 1998 but they were received back unpaid alongwith the memo of bank dated 11th April, 1998 informing that the payment had been stopped by the drawer. In para 14 it is averred that complainant sent another legal notice dated 21st April, 1998 by speed post and UPC calling upon the accused to make payments of said cheques with interest @ 18% per annum. Although this notice was duly served, the accused failed to make the payments. In additional para 20 of the reply filed to the petition, It is alleged that after posting of first notice dated 8th December, 1997, the complainant contacted the officers of accused company who Instructed him to present the cheques again as stop payment instructions had been Withdrawn. It was oh the'basis of this representation that the cheques were again presented and they were dishonoured again. As la manifest from said paras 11,12,13 and 14 of the complaint and para 20 of Additional plea of the reply, the case of the complainant had throughout been that the accused company was served with the first demand notice dated 8th December 1997. To be only noted that copy of aforesaid reply dated 5th May, 1996 sent on behalf of accused No.1 company to complainant's notice dated 21st April, 1998 was filed by the complainant alongwith reply to the petition. A combined reading of paras 1, 2 & 19 of aforesaid reply to which my attention was invited, do not indicate that receipt of first notice dated 8th December, 1997 is denied by the accused. In Sadanandan Bhadran'a case (supra), the Supreme Court held that the payee can go on presenting a cheque any number of times during the period of its validity but once he gives the notice under Clause (b) of Section 138 of Act, he forfeits the right to again present the cheque and complaint could'be filed only within a month of the accrual of cause of action. Obviously, four complaints based on said second demand notice filed on 14th May, 1998 are barred by time and the Metropolitan Magistrate seized of the matter could not have taken cognisance thereof. Although these petitions have been filed only by accused No.2 but the complaints deserve to be quashed in toto on the said ground.