ARUN SAHAY Vs. DCM FINANCIAL SERVICES

JUDGEMENT

(1.) DCM Financial Services Ltd. (hereinafter referred to as 'the complainant') has filed a complaint under Sections 138/141/142 of the Negotiable Instruments Act, 1881 (for short, 'the Act') read with Section 420 of the Indian Penal Code (IPC) against as many as seven persons. Prime accused is M/s. Perfect Drugs Ltd. (hereinafter referred to as 'the accused company' ). Others are impleaded on the allegation that they were controlling the affairs of and responsible for the conduct of the affairs of the accused company. Accused No. 2 is the Chairman and accused No. 3 is shown as Managing director of the accused company, whereas other accused persons were holding office in different capacities. All these accused have been summoned in the case by the trial court finding prima facie case against them. The present petition is filed by the accused no. 3 challenging the summoning order and seeking dismissal of the complaint qua him.

(2.) ACCORDING to the complaint, the accused company had approached the complainant for taking on hire-purchase/lease basis certain equipments/machinery/car etc. The complainant agreed to acquire/ purchase the equiment for the accused company and hire purchase/ lease agreement dated 27. 8. 1997 was entered into. The accused persons also executed relevant documents in favour of the complainant pursuant to the said hire purchase/lease agreement. The accused company issued and handed over post-dated cheques (one cheque for each hire/lease rental) to the complainant towards the payment of monthly hire/lease rentals. When these cheques were presented, they were returned unpaid by the banker with the remarks "refer to Drrawer". On being contacted, the accused company requested the complainant to present the said cheques again. Accordingly, three cheques, particulars whereof are given in para 8 of the complaint, for a sum of Rs. 8,62,950/-, rs. 8,62,950/- and Rs. 17,67,128/-respectively were presented for encashment again, but the same were returned dishonoured vide memo dated 24. 4. 1998 and 25. 4. 1998 with the remarks "refer to Drawer". The complainant, therefore, sent legal notice dated 6. 5. 1998 demanding the payment. This notice was sent to the accused persons by registered ad post as well as UPC, but they failed to make the payment. Thereafter, the complaint was filed, in which summoning orders dated 10. 12. 1998 have been passed.

(3.) IN the complaint seven persons have been impleaded as accused persons. Accused No. 1 is the company M/s. Perfect drugs Ltd. This petition challenging the summoning orders is preferred by the accused Nd. 3. Another petition, Crl. M. C. No. 4257/2000, was filed by accused Nos. 4, 5 and 7. Both the petitions were heard together and judgment reserved on 23. 11. 2006. The judgment in Crl. M. C. No. 4257/2000 was pronounced on 20. 12. 2006 along with number of other petitions raising identical legal issues. Vide the said judgment, Crl. M. C. No. 4257/2000 has been allowed and the summoning orders qua accused Nos. 4, 5 and 7 have been quashed. It seems that inadvertently this petition was left out at that time.