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M/S. Mohindra Stainless ltd.

vs.
M/S Sit Flexible Hose pvt. Ltd. & ors

(CC No.18574/15)

Complaint:

The complaint is filed under Section 138 r/w 141 of the Negotiable Instruments Act,
1881.

Section 138. Dishonor of cheque for insufficiency, etc., of funds in the accounts

Where any cheque drawn by a person on an account maintained by him with a banker
for payment of any amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability, is returned by the bank
unpaid, either because of the amount of money standing to the credit of that account is
insufficient to honor the cheque or that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank, such person shall be deemed to
have committed an offence and shall without prejudice to any other provisions of this
Act, be punished with imprisonment for a term which may extend to one year, or with
fine which may extend to twice the amount of the cheque, or with both:

PROVIDED that nothing contained in this section shall apply unless-


(a) the cheque has been presented to the bank within a period of six months from the
date on which it is drawn or within the period of its validity, whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the case may be, makes a
demand for the payment of the said amount of money by giving a notice, in writing, to
the drawer of the cheque, within fifteen days of the receipt of information by him
from the bank regarding the return of the cheque as unpaid, and
(c) the drawer of such cheque fails to make the payment of the said amount of money
to the payee or, as the case may be, to the holder in due course of the cheque, within
fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally
enforceable debt or other liability.

Comment: As the signature in the cheque is admitted to be that of the accused, the
presumption envisaged in Section 118 of the Act can legally be inferred that the
cheque was made or drawn for consideration on the date which the cheque bears.
Section 139 of the Act enjoins on the Court to presume that the holder of the cheque
received it for the discharge of any debt or liability. The burden was on the accused to
rebut the aforesaid presumption. K. Bhaskaran, Appellant v. Sankaran Vaidhyan
Balan, AIR 1999

Section 141. Offences by companies


(1) If the person committing an offence under section 138 is a company, every person
who, at the time the offence was committed, was in charge of, and was responsible to
the company for the conduct of the business of the company, as well as the company,
shall be deemed to be guilty of the offence and shall be liable to be proceeded against
and punished accordingly:

PROVIDED that nothing contained in this sub-section shall render any person liable
to punishment if he proves that the offence was committed without his knowledge, or
that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under
this Act, has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to, any neglect on the
part of, any director, manager, secretary or other officer of the company, such director,
manager, secretary or other officer shall also be deemed to be guilty of that offence
and shall be liable to be proceeded against and punished accordingly.

Explanation: For the purpose of this section


(a) "company" means any body corporate and includes a firm or other association of
individuals; and
(b) "director", in relating to a firm, means a partner in the firm.
Brief facts:

TheComplainantCompany,isaLimitedCompanyhavingitsRegisteredOfficein
Rohtakroad,NewDelhi. This Company engages in the manufacture, sale and supply
of Stainless Steel Wires. The respondent Company is a Private Limited Company,
who have been dealing with the Claimant Company as a regular customer for
sometime in the purchase of items manufactured and sold by the Complainant
Company. In view of the same, the Complainant Company maintained regular
accounts in the name of the Respondents. During the curse of business with the
Complainant Company, the Respondents had purchased the goods which were duly
received and acknowledged by them. The Respondents issued several cheques from
time to time for the several invoices raised by the Complainants. However, these
aforementioned cheques were dishonored and returned. This was immediately brought
to the attention of the Respondents, but despite repeated requests, the Respondents
failed to pay the amount of dishonored cheques. A legal notice was served to the
Respondents, which turned out to be futile. Therefore the Claimants are alleging the
commission of offence under Section 138 r/w Section 141 of the Negotiable
Instruments Act, 1881.
Mr. Kazim is reperesnting the Complainant Company in the instant case.
Observations:

In lieu of this course, I attended the civil court proceedings in the court of the Chief
metropolitan Magistrate, Tis Hazari Courts, New Delhi ASJ, Saket District Court,
New Delhi, in the matter of the claimants. I attended two of the hearings. The
following are my observations:

17th August, 2016:

The court, in its earlier order had demanded for the submission of the amended memo
of the Complainant, along with the copy of the original documents to be submitted in
the court. On this date, the same was adhered to by the complainants.
Along with that, the statement of one Mr. Sunil Mishra, who is the Authorized
Representative of the Company was tendered through an affidavit.
The next hearing was set for the 20th October, 2016.

10th October, 2016:

On this day, the matter was heard and discussed in the court at length in a Joint
Session. A compromise was sought by both the parties. The same was granted by the
court. The Mediator referred the court for recording of the statement. The court
ordered for the same.

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