Punjab-Haryana High Court
M/S Mountain Fall India Private ... vs M/S Lahmeyer International ... on 21 May, 2014
This petition, having been filed invoking jurisdiction under Section 482 of the Cr.P.C., seeks quashing of criminal complaint no.320 of 2012 dated 26.11.2012, filed by the respondent-company against the petitioners, for the alleged commission of an offence punishable under Sections 138, 141 & 142 of the Negotiable Instruments Act, 1881 (hereinafter to be referred to as "the Act").
2. It is stated in the petition that petitioners No.2 and 3 are Directors and petitioners Nos.4 & 5 are Senior Vice President and authorized signatory respectively, of the first petitioner, i.e. the company, Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this documentM/s Mountain Fall India Pvt. Ltd. The petitioner-company claims to be a reputed company engaged in the construction of hydro power projects allotted by State Governments.
3. As per the complaint filed before the trial Court by the respondent-company (Annexure P-1), it is a subsidiary company of M/s Lahmeyer International GmbH and both, the parent as well as the subsidiary company, are in the business of engineering consultancy for projects of varied nature. They entered into a consultancy contract, on 27.05.2009, with the petitioner-company, for providing consultancy services with regard to preparation of a Feasibility Study Report and a Detailed Project Report for a hydro power project being undertaken by the petitioner in Arunachal Pradesh.
The complaint states that in view of the services provided, the 2 companies, i.e. the parent company and its Indian subsidy, became entitled to Euros3,03,264.21/- and `1,57,11,612/- respectively, from the petitioner company. Accordingly, bills and invoices were raised and issued to the petitioner-company; however, despite much communication by Email, letters and telephonic conversions, eventually a cheque of only `25,00,000/-, bearing No.146836, was issued by the petitioners on 3.10.2012, in favour of the respondent, as part payment of amounts due.
After, allegedly, assurances also having been given by the accused (petitioners), that the cheque would be honoured, it was deposited with the HDFC Bank Ltd., in its branch at SCO No.15, Sector 14, Gurgaon, on the same date, i.e. 3.10.2012.
4. However, on the 5th October, 2012, the respondent-complainant company received a memo dated 4.10.2012 from its bank, informing it that Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document the cheque stood dishonored on the ground of insufficiency of funds.
Accordingly, as per the complaint, the respondent-complainant served a legal notice dated 31.10.2012, making a demand of payment of the said amount of `25,00,000/- within 15 days of the receipt of the notice. The notice is stated to have been despatched by courier and registered post (acknowledgment due), at the addresses of all 5 petitioners, despite which all the accused persons failed to respond to it, to make the payment within the stipulated period.
Consequently, the complaint came to be filed by the respondent
-company. Though the copy of the complaint annexed with the petition does not give the date on which it was filed, however, Mr. R.S. Rai, learned Senior Counsel appearing on behalf of the petitioners, had stated that it was filed on 26.11.2012.
5. In the present petition, it has been averred by the petitioners that the complaint under Section 138 of the Act is an abuse of the process of law and is maliciously motivated, for the reason that the amount of the dishonored cheque was duly received on behalf of the respondent-company on 10.12.2012, by way of a demand draft / bankers' cheque No.507352 of even date, i.e. dated 10.12.2012, drawn on the State Bank of India, but the same was returned, stating that the complaint under Section 138 had already been filed and the respondent-company would like to continue with the same.
Thus, it is averred, that the real intention was only to maliciously prosecute the petitioners and as such, the complaint be quashed.
6. Though the essential facts as given in the complaint are not denied by the petitioners, however, it is stated that petitioners No.2 and 3, Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document i.e. the 2 Directors of the petitioner-company are neither signatories to the cheque, nor are in charge and responsible for its day to day working and as such, cannot be prosecuted under Section 138 of the Act.
It is also stated that the legal notice dated 31.10.2012 was never served upon the petitioners and the petitioners were in fact, not even aware about the dishonoring of the cheque; however, when the fact of the cheque having been dishonored came to their knowledge, petitioners No.4 and 5 had, even before summons of the complaint were served upon them, already sent the amount of ` 25 lacs by way of the demand draft referred to herein above, dated 10.12.2012, accompanied by a letter of the same date, i.e. 10.12.2012.
The said letter and demand draft / bankers' cheques are stated to have been duly received by one Manoj, Private Secretary to Sh. A.K. Jha, Senior Vice President of the company.
Thus, as per the petitioners, the offence, if any committed, under Section 138 of the Act, stood compounded and there was no reason for continuance of the criminal proceedings any further.
7. The petition further states that on the first date that they were required to appear before the learned trial Court after summons had been issued, i.e. on 19.12.2012, an application was moved by the counsel for petitioners No.4 & 5, informing the Court of the demand draft having been sent, with willingness expressed to still pay the amount due.
However, vide order of the same date, the trial Court summoned petitioners No.2 and 3 through bailable warrants.
8. As per the reply filed by the respondent-complainant company, the petitioners are guilty of suppressing facts before this Court inasmuch as, Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document despite the fact that the amounts of `1,57,11,612/- and Euros 3,03,264.21/- having become due to the respondent and its parent company in the month of January 2012 itself, by way of invoices raised between the 3rd and 18th of January, the amounts were never paid, despite all the communication that took place for realization of such payment and that even the dishonored cheque was only a small amount of the entire payment due.
As per the reply, an assurance had also been given by the petitioners, that the remaining payment would also be made shortly, despite which even the part payment did not stand discharged on account of the cheque having been dishonoured.
9. It is also contended in the reply, that the notice dated 31.10.2012 was duly received by the petitioners on 01.11.2013 through courier, as per the delivery sheet given by Blue Dart Express Ltd. (courier company) and the registered AD Post, the acknowledgment card of which was dated 3.11.2012 (copies of which have been annexed as Annexures R-9 & R-10 respectively), showing delivery to petitioners No.2 to 5 by the courier company and petitioner No.2 also by registered post).
10. Other than the preliminary objection of non-maintainability of the petition on account of concealment of facts, in reply to the averments made in the petition, it has been stated that in view of the background of the case and the fact that the cheque amount stood dishonoured, the prosecution launched against the petitioners ought to reach its logical end as an offence has been committed which, "in no way can be compounded or set to naught by preparing a draft of the same amount and sending the same to the Respondent/Complainant after receipt of the legal notice and service of summons upon filing of the complaint by the respondents." Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document Thus, reply contends, that preparation of the draft does not absolve the accused of the offence already committed due to dishonouring of the cheque and, as such, the proceedings under Section 138 are wholly in consonance with the provisions of the Act.
11. As regards petitioners No.2 and 3, it is contended that they are directors of the petitioner company and are actually involved in its day-to- day functioning and that specific allegations have been made by the respondent in the complaint to that effect, as the said two petitioners were involved in the negotiations etc. concerned with the contract with the respondent, from the beginning of the negotiations and that petitioner No.3 had actually signed the Consultancy Agreement dated 27.05.2009.
12. The contention of the petitioners that they were unaware of the dishonouring of the cheque on 03.10.2012, is refuted in the reply filed, on the ground that such dishonouring would have reflected in the bank account statement issued by the petitioners' bank in the two month period between 03.10.2012 to 10.12.2012, when the bank draft was prepared.
As such, it is stated that knowing fully well that the cheque was issued with insufficient funds in the bank account, the objective of the petitioners was to simply harass the respondent and not to actually make any payment.
The reply further contends that after having duly availed of its consultancy services, the petitioners are making the respondent run after them for payment due, which is of a far larger amount than Rs.25 lacs.
13. As regards the bank draft having been issued without knowledge of the process issued by the trial Court, the respondents' contention is that the summons issued to petitioners No.4 and 5 were served Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document dasti on 02.12.2012 and summons to the others were sent by registered post with acknowledgment due. Hence, the contention, it is stated, is belied.
14. Mr. R.S. Rai, learned Senior Counsel appearing for the petitioners, submitted that the complaint was dated 26.11.2012 and summons were ordered to be issued by the learned JMIC, Gurgaon, on the same date, requiring the presence of the petitioners on 19.12.2012. Therefore, even before the petitioners were required to be present before the Court, the demand draft had been sent on 10.09.2012, which was returned by the respondent on 13.12.2012. Thereafter, on 19.12.2012 also, the petitioners had offered to make the payment by moving an application before the learned trial Court, a copy of which has been annexed with the petition.
As such, Mr. Rai submitted that in view of the law laid down in C.C. Alavi Haji V. Palapetty Muhammed and another,JT (2007) 7 SC 498, once the payment has been offered to be made before the trial Court by the accused, the basis of the criminal proceedings under Section 138 would no longer subsist and, therefore, the petitioners should have actually been discharged on that date itself by that Court.
He also drew attention to the notice issued on behalf of the respondent-company on 31.10.2012 (Annexure R-8 with the reply), calling upon the petitioners to make the payment of the amount of the dishonoured cheque within 15 days and submitted that the said notice was never actually served upon the petitioners themselves, even as is obvious from the delivery sheet of the courier company, which does not show any signatures of the petitioners upon it, in proof of the notice having actually been served upon them.
Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document
15. Mr. Rai further cited from the same judgment in the case of Alavi Haji (supra), (which is also relied upon learned counsel for the respondent), to submit that, as observed by their Lordships in para 4 thereof, the object of the Act was promoting and inculcating faith in the banking system and its operations and giving credit to negotiable instruments in business transactions. As such, learned Senior counsel contended that the intention of the petitioners in honouring their liability to make the payment in respect of the dishonoured cheque, was manifest by sending the demand draft to the respondent well before the trial effectively got underway.
He further drew attention to para 16 of the said judgment, wherein their Lordships had quoted from the earlier judgment in D. Vinod Shivappa V. Nanda Belliappa, JT (2006) 11 SC 187, as under:
"One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice."
Mr. Rai further relied upon the observations made in the next paragraph of the judgment (C.C. Alavi Haji), to submit that since the payment had actually been made well within 15 days of the summons having been issued, even without going into the controversy of the date of receipt, the proceedings before the trial Court could not be allowed to continue.
The Supreme Court had held as given herein below:- Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document "17. It is also to be borne i n mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with a copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
16. Thus, Mr. Rai contended that the petitioners having shown their bonafides to discharge their liability, by sending the amount due by way of a bank draft (and not a cheque), on the 10.12.2012 itself, the proceedings before the trial Court deserve to be quashed.
17. On the other hand, Mr. Anand Chhibbar, learned Senior counsel appearing for the respondent-company submitted that the intention of the petitioners was very clear from the fact that out of the amount of Rs.4 crores plus, due since January 2012, the petitioners had chosen to only issue a cheque for an amount of Rs.25 lacs in October of that year, which amount was also dishonoured and thereafter, it was only with the sword of damocles hanging on their heads in the form of criminal proceedings under Section 138 of the Act, that they offered to make payment by way of demand draft.
As such, Mr. Chhibbar contended that the respondent-company Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document was not willing to accept the payment, once the concessional period of 15 days after legal notice was issued for the payment of the dishnoured cheque had expired.
18. He first relied upon the same judgment, i.e. Alava Haji (supra), to submit that the observations of the Supreme Court relied upon on behalf of the petitioners were only to protect a genuine bonafide non-receiver of the notice and not for persons like the petitioners, who were deliberately harassing the respondent-company.
In the said case, the effect of Section 114 of the Indian Evidence Act, 1872, in relation to what was held in the D. Vinod Shivappas' case (supra), was referred to a larger Bench.
In D. Vinod Shivappas' case, as already reproduced earlier, it was held that clause (b) of the proviso to Section 138 of the Act was only "meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, who or may have genuinely wanted to fulfill their promise....", but was not meant to "protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons".
Thus, Mr. Chhibbar states that in the present case, it was very obvious that the intention of the petitioners was only to avoid payment for long as possible and when their backs were pressed against the wall by way of criminal proceedings launched against them, the payment was made. As such, not being honest drawers of the cheque, they should not be allowed to take advantage of alleged non-receipt of the notice issued by the respondent as per clause (b) of the proviso to Section 138 of the Act, whereas actually such notices had been duly received by them.
Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document
19. Before going onto the other issue of compounding the matter, upon offer of payment having been made after process was issued by the trial Court, I would first deal with the issue of receipt/non-receipt of notices.
In my opinion, the question in this case of non-receipt of the notice issued on behalf of the respondent on 31.10.2012 is not a tenable argument on behalf of the petitioners, unless the same is proved before the trial Court as per evidence led there. I say this in view of the fact that, whereas one of the notices, i.e. the one issued to petitioner No.5, Sandeep Aggarwal, carries an address along with his name on the delivery sheet annexed with the reply as Annexure R-9, the notices issued to the other three petitioners, i.e. Mohinder Singh Narula, P.S. Khurana and Harvinder Singh Kohli, do not show any address in the delivery sheet, though the delivery appears to be to a domestic address, in view of the word "DOMESTI" appearing in the said delivery sheet against each name.
There is also a photocopy of an acknowledgment card addressed to petitioner No.2 annexed with the petition, on which a signature in Hindi can be seen, purportedly of the person who received the notice. Along with that, there is an acknowledgment card on which the name of the 1st petitioner/company is given, with an address in Gurgaon. However, no signature is shown on it, as only a photocopy of the obverse and not the reverse side has been annexed with the reply.
Further, however, there are also appended along with the reply of the respondent, copies of tracking details of another courier company (DHL) showing delivery of some shipments to various recipients.
As such, all these, amongst other things, would be subject matter of evidence to be led before the trial Court and cannot be decided in Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document these proceedings, in order to determine as to whether there was compliance of clause (b) of the proviso to Section 138 of the Act.
20. However, Mr. Rai contended on behalf of the petitioners that all this pales into insignificance, in view of what has been held in para 17 of the judgment in C.C. Alavi Hajis' case (supra), as reproduced herein above. Without a doubt, in the said case their Lordships have held that "any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court, in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made the payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected".
The question is whether this benefit can be held to be applicable to the case of the petitioners, in view of the background leading up to the filing of the complaint, inasmuch as, no payments were made till October, 2012 and thereafter, the cheque for Rs.25 lacs was issued as part payment to the approximately Rs.4.5 crores allegedly owed by the petitioners to the respondent and its parent company. Though this Court is not concerned in these proceedings with any other amount which may or may not have been outstanding against the petitioners in favour of the respondent, other than the amount of the dishonoured cheque, the factum of such dishonouring, of course, is obviously very much subject the matter of this case and the honesty or dishonesty of intention would necessarily have to be gone into, even as per the ratio of the cited judgment.
This would be so, in view of the fact that the three Judge Bench in Alavi Hajis' case was deciding a reference with regard to correctness of Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document the law laid down in D. Vinod Shivappas' case (supra), which the three Judge Bench found to be law correctly laid down.
Thus, the law laid down in D. Vinod Shivappas' case, as reproduced in para 16 of C.C. Alavi Hajis' case, has to be read along with what was held in para 17 of the latter case. In Shivappas' case, as already reproduced earlier, it was held that:-
"To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons."
Presently, I find that there is no clear evidence before this Court as to whether or not the notice issued on 31.10.2012 on behalf of respondent, to the petitioners , was actually received by them or not, so as to be able to determine the bona fides of their action in sending the bank draft as contended. As such, whether they are honest or well intentioned drawers or not, to be able to derive the benefit of the judgment in Alavi Hajis' case, would be determinable only after evidence with regard to receipt non/receipt of the notices, is led before the trial Court.
21. The next issue is also related to one aspect of the first, in fact, in a manner, is dovetailed into that aspect of it, because the question still is as to whether, in the light of the fact that within two weeks of the process of summons having been started by the trial Court, can the proceedings be allowed to continue or should be quashed, since it is not denied in any case Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document that the petitioners had sent a demand draft/bankers' cheque for the amount as contained in the dishnoured cheque. In other words, de hors of whether the notices were received or not, is the matter to be necessarily compounded, once the payment has been offered at the outset, before the trial Court?
22. Mr. Rai would draw the attention of this Court to the guidelines laid down in the case of Damodar S. Prabhu Vs. Sayed Babalal H., (2010) 5 SCC 663. Such guidelines were laid down by a three Judge Bench of the Hon'ble Supreme Court, to the effect that while issuing a writ of summons, the trial Court should make it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the Court without imposing any costs. The further part of the guidelines are with regard to what costs should be imposed in case the compounding is not done on the first and second hearing of the case but subsequently before the trial Court or before the High Court or the Supreme Court.
23. No doubt, these guidelines would otherwise be binding on this Court and the petitioners entitled to the benefit thereof, especially if they are to fall with in the ambit of observations made in para 17 of the C.C. Alavi Hajis' case (supra).
However, in view of two factors, this Court is restrained from immediately granting such benefits to the petitioners:
i) Because, as already said, the observations made in C.C. Alavi Hajis' case (supra) (in para 17 thereof), to my mind, would be applicable only if it is shown beyond doubt that there was no malafide Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document intention of the petitioners in making the payment, either at the stage of issuance of the cheque, or later, due to genuine non-receipt of the notice issued under clause (b) of the proviso to Section 138 of the Act.
ii) Other than the above, even presuming that the intention of the petitioners in making good the payment for the amount as written out in the dishonoured cheque is not material for compounding the matter, as per the guidelines laid down in Damodars' case, would it still necessarily entitle them to a compounding the offence?
24. The answer to that would not be as simple as projected to be made out by Mr. Rai in terms of the judgment in Damodar S. Prabhus' case, in view of the subsequent judgment relied upon by Mr. Chhibbar, in the case of JIK Industries Limited and others Vs. Amarlal V. Jumani and another, JT (2012) 2 SC 1.
In the said case, though the issue primarily was whether the proceedings under Section 138 of the Act could survive once a Scheme had been sanctioned under Section 391 of the Companies Act, 1956, however, while holding that an offence made out under Section 138 of the Act has to be dealt with independently of the Scheme, their Lordships further held, after considering the guidelines laid down in Damodars' case, that compounding of an offence cannot be ordered by the Court unless the consent of the person aggrieved, i.e. the complainant, is obtained. Their Lordships thereby held that Section 320 of the Cr.P.C. cannot be made inapplicable to Section 147 of the Negotiable Instruments Act. As such, consent of the complainant, in order to compound an offence, was held to be essential.
25. The following passages from JIK Industries would need to be Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document reproduced:-
"46. Section 147 of the Negotiable Instrument Act reads as follows:"147 Offences to be compoundable Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable"47. Relying on the aforesaid non-obstante clause in Section 147 of the N.I. Act, learned counsel for the appellant argued that a three-Judge Bench decision of this Court in Damodar (supra), held that in view of non-obstante clause in Section 147 of N.I. Act, which is a special statute, the rquirement of consent of the person compounding in Section 320 of the Code is not required in the case of compounding of an offence under N.I. Act. This Court is unable to accept the aforesaid contention for various reasons which are discussed below."xxxxxxxx "58. It is clear from a perusal of the aforesaid Statement of Objects and Reasons that offence under the N.I. Act, which was previously non- compoundable in view of Section 320 sub-Section 9 of the Code has now become compoundable. That does not mean that the effect of Section 147 is to obliterate all statutory provisions of Section 320 of the Code relating to the mode and manner of compounding of an offence. Section 147 will only override Section 320(9) of the Code in so far as offence under Section 147 of N.I. Act is concerned. This is also the ratio in Damodar (supra), see para 12. Therefore, the submission of the learned counsel for the appellant to the contrary cannot be accepted."
Thereafter, after discussing earlier case law on the issue, it was held as under:-
"68. Both these aforesaid decisions were referred to and approved in Damodar (supra). The decision in Damodar (supra) was rendered by referring to Article 142 of the Constitution insofar as guidelines were framed in relation to compounding for reducing pendency of 138 cases. In Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document doing so the Court held that attempts should be made for compounding the offence early. Therefore, the observations made in paragraph 24 of Damodar (supra), that the scheme contemplated under Section 320 of the Code stand obliterated by a side wind as it were.69. It is well settled that a judgment is always an authority for what it decides. It is equally well settled that a judgment cannot be read as a statute. It has to be read in the context of the facts discussed in it. Following the aforesaid well settled principles, we hold that the basic mode and manner of effecting the compounding of an offence under Section 320 of the Code cannot be said to be not attracted in case of compounding of an offence under N.I. Act in view of Section 147 of the same." (Emphasis supplied).Finally, concluding the judgment, it was held that:-"73. xxxxxxxxxx The present Code, which repealed the 1898 Code, contains Section 320 containing comprehensive provisions for compounding. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-Sections is a Code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. It this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the N.I. Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the N.I. Act, in that case the compounding of offence under N.I. Act will be left totally unguided or controlled. Such an interpretation apart from being a absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under N.I. Act. Therefore, Section 147 of the N.I. Act must be reasonable construed to mean that as a result of the said Section the offences under N.I. Act are made compoundable, but Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document the main principle of such compounding namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of N.I. Act. (Emphasis supplied)74. For the reasons aforesaid, this Court is unable to accept the contentions of the learned counsel for the appellant(s) that as a result of sanction of a scheme under Section 391 of the Companies Act there is an automatic compounding of offences under Section 138 of the N.I. Act even without the consent of the complainant."
26. Hence, it is clear that in order to compound an offence under the Act, which is otherwise permissible by Section 147 thereof, consent of the complainant is essential.
In this case, Mr. Chhibbar has made it very clear that the respondent-complainant company has not given its consent in any manner whatsoever, so far, for compounding of the offence under Section 147 of the Act.
27. Hence, keeping in view the entire discussion, as has been given herein above, I find there is no merit in this petition, which seeks quashing of the complaint filed against the petitioners by the respondent.
As a result, the petition is dismissed and the trial Court is directed to proceed with the complaint filed before it by the respondent, i.e. Crl. Complaint No.320/12, dated 26.11.2012, titled as M/s Lahmeyer International (India) Pvt. Ltd. Vs. M/s Mountain Fall (India) Pvt. Ltd, from the stage where it was stayed.
However, nothing said herein above would affect the merits of the case before the learned trial Court, which would proceed in terms of the provisions of Section 138 of the Negotiable Instruments Act, wholly as per Praveen Kumar 2014.05.24 17:01 I attest to the accuracy and integrity of this document contentions made and evidence led before it, as per law, on all aspects of the matter.
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