HARINDER DHINGRA Vs. STATE OF DELHI

JUDGEMENT

(1.) The complainant Lalit Kumar Jain has filed complaint under Section 138 of the Negotiable Instruments Act (in short the 'NI Act) on the basis of dishonour of cheque No.720385 dated 8.4.2005 drawn on Bank of Punjab Ltd., Hemkunt Chambers, New Delhi, which was in the sum of Rs.6,41,417/ This cheque was presented on 8.4.2005 and was returned unpaid bn 9.4.2005 giving the reason "Funds Insufficient" in the cheque returning memo dated 9.4.2005. Notice was sent by registered AD post as well as approved courier at the address of the petitioner Harinder Singh Dhingra. Notice sent by Speed Post AD was returned with the remarks "refused" and the notice sent through courier was also returned unserved with the remarks "no such person or company at the given address." Thereafter, the petitioner filed the complaint in which summoning orders were issued, which orders could not be served. Thereafter, vide order dated 20.5.2006 on the application of the complainant, non-bailable warrants were issued against the petitioner herein. At this juncture, present petition is filed. When this petition came up for hearing on 26.6.2006 the Vacation Judge passed the order directing the petitioner to deposit a sum of Rs.6,41,470/- in this Court and subject to this deposit, it was directed that the petitioner shall not be arrested. This amount was deposited and on the deposit of this amount, notice was issued on 30.6.2006. After the notice was issued, the respondent appeared and the matter was argued.

(2.) The contention of the petitioner on the basis of which the petitioner is seeking quashing of the summoning order and dismissal of the complaint is that the petitioner is an exporter of readymade garments doing business under the name and style of M/s. Golden Harvest. There is another company called M/s. Elegance Fabric Pvt. Ltd. (hereinafter referred to as Elegance), which is managed by his wife, who is doing independent business of garment export. The complainant had approached Elegance to supply silk fabric to it through one M/s. Thakur and Associates, who is working as a commission agent. After negotiations, the respondent No.2/complainant started supplying silk fabric to Elegance. In discharge of the liability the petitioner issued two cheques to the complainant from an account maintained by his firm M/s. Golden Harvest. Both the cheques were returned unpaid and the respondent No.2, therefore, issued notice dated 14.4.2005 to the petitioner under Section 138 of the NI Act, which was replied to by the petitioner vide reply dated 3.5.2005. Thereafter, the respondent No.2 approached the petitioner and received the said amount in cash from the petitioner and also returned the unpaid cheques. However, the petitioner was shocked to receive the summons in the present complaint pursuant to summoning order dated 16.2.2006 showing that the petitioner was proprietor of M/s. Thakur and Associates. It is the submission of the petitioner that the cheque in question is issued by the firm M/s. Thakur and Associates, which is owned and managed by Mr. Sanjeev Thakur and the petitioner has nothing to do with this and has no concern with the said M/s. Thakur and Associates except that this firm was the intermediary and commission agent of the respondent No.2/complainant. It is further stated that it is falsely averred that the cheque in question, which is dishonoured, was signed by the petitioner or the person who is the proprietor and authorised signatory. Thus, in nutshell, the case of the petitioner is that the petitioner is not the proprietor of M/s. Thakur and Associates and has not issued the cheque in question, which is dishonoured and on the basis of which, the complaint is filed and, therefore, the petitioner cannot be held responsible for the dishonour of this cheque, which is issued by M/s. Thakur and Associates, sole proprietorship concern of Mr. Sanjeev Thakur.

(3.) Case of the complainant, on the other hand, is that it is the petitioner who represented himself to be the sole proprietor of M/s. Thakur and Associates and always dealt with the complainant in that capacity.