Ms. Raj Bala Mudgal & Others vs Wazir Hassan & Another

Mr. P.C. Pethsali, Advocate, for the applicants. Mr. Alok Dalakoti, Advocate, holding brief of Mr. A.K. Joshi, Advocate, for the complainant respondent. 27th July, 2012 Hon(cid:146)ble Servesh Kumar Gupta, J. This judgment will adjudicate both the above titled petitions as the duo entails the same controversy between the same parties.

2. Petitioners have challenged two different orders of cognizance dated 1.3.2006 and 29.3.2006 passed Complaint Case No. 249/2006 and Complaint Case No. 422/2006 respectively filed by Wazir Hassan, Contractor, in the court of Judicial Magistrate, Kashipur, District Udham Singh Nagar. Order of cognizance dated 1.3.2006 has been challenged in Petition No. 307/2006, while and another order of cognizance dated 29.3.2006 has been challenged in Petition No. 308/2006.

3. The facts are that Wazir Hassan some time acted for Delhi Advertising Cooperative Group Housing Society 2 Limited (for short, Society) having its office at Mayur Vihar, Phase I Extension, Delhi. This company was engaged in the business of purchasing the land or taking the same on lease at various places making its development for various purposes and constructing the flats thereupon. This company has its different office bearers from time to time. Since 7.3.2003 to 26.8.2005, the office bearers of the society changed two times, but its Secretary Mahesh Belwal remained the same both times. However, on 26.8.2005 and onwards, the office bearers changed altogether and one Mr. Anil Gosain succeeded in the office as Secretary instead of Mahesh Belwal.

4. It appears that being annoyed for not being elected, Mahesh Belwal did not hand over the charge of the office to the succeeding committee. Feeling constrained, the new committee applied to the Branch Manager, State Bank of India, Daryaganj, New Delhi where the account no. (cid:147)75148(cid:148) was being operated to close the same. This Letter was written to the bank on 3.9.2005 just within a week when the new committee took over the office. In the letter, the request was also made for the preparation of a bankers cheque in the name of the society for all the balance amount in the said account. Besides a letter was also written by the Joint Registrar of the society to the Divisional Commissioner, Government of Delhi complaining the conduct of the previous office bearers and requested the Delhi Administration for authorizing the Sub Divisional Magistrate, exercising its jurisdiction over the area, to enter, search and break open any premises where the record and properties of the society were lying. The request was also made to deliver all these things to the new office bearers of the society. 3

5. Further, Mahesh Belwal committed a mischief and he issued a number of cheques, which were for a considerable amount, to Wazir Hassan, who was an erstwhile worker of the society in the times of previous office bearers. When these cheques were dishonoured by the bank with the remark that the cheques were either outdated or the account was closed, then Wazir Hassan filed the aforementioned complaints the court of Judicial Magistrate, Kashipur under Section 138 of the Negotiable Instruments Act, and the learned Magistrate, without taking care of all the facts, passed the impugned orders of cognizance in both the complaints.

6. Obviously, both the complaints filed by Wazir Hassan are with the connivance of Mahesh Belwal, the erstwhile Secretary of the society. The reasons exposing this connivance are as under: (a) All the cheques were outdated and it appears that these were issued by Mahesh Belwal, whose signatures are not denied upon the said cheques, much before the new committee was elected on

26.8.2005 and it succeeded in the office instead of Mahesh Belwal. (b) The charge was not handed over by Mr. Belwal to the office bearers of the new committee. (c) The bank statement drawn from the State Bank of India and filed with the supplementary affidavit adverts that these cheques were issued even years before by the bank at the time of Mr. Belwal. (d) It is somewhat not acceptable that a person who has got the cheques from a fully solvent company would wait for several months and years keeping the cheques in his pocket and submit the same for encashment after a considerable time. 4 (e) Mr. Wazir Hassan, who have had his account in Nainital Bank in Delhi itself, as has been disclosed in para 20 of the petition as account no. (cid:147)7001192(cid:148), Aachary Niketan, Mayur Vihar, Phase I, Delhi, but he came to Kashipur (Uttarakhand) to the bank account and submitted questioned cheques for collection from Delhi based bank. His address of Delhi is C-76, Chander Nagar, Mandavali Faizalpur as shown in Nainital bank record. This has not been denied by Mr. Hassan in para 12 of his counter affidavit. So, it is quite unacceptable (although legally not impermissible) that he travelled from Delhi, the place of his normal dwelling, to a distant place Kashipur in another province and deposited the cheques at that place i.e. Kashipur. To writ large which is for some ulterior motive and that is nothing but only to cause harassment to present office bearers of the society at the behest of Mr. Mahesh Belwal, Mr. Hassan filed the impugned complaints. (f) Wazir Hassan himself has written his address in the complaints as the resident of village Sitapur, Baheri, District Bareilly, Uttar Pradesh. It is quite amazing that from the nearby town of his residence, he came to Kashipur to deposit the cheques and subsequently filed his complaints in another province. This was also for the same purpose as stated by this Court above. (g) The accused were not impleaded by their names, while this Court has been apprised that the learned trial court has issued the non-bailable warrants against present office bearers by their names, which might have been supplied by none other than Wazir Hassan. 5

7. Undoubtedly, Section 141 of the NI Act does not absolve the company from its liability, if the cheating has been done by its office bearers at any point of time. But at the same time, the current office bearers are saved from any criminal liability if it is proved that it was done with the connivance of previous office bearers.

8. The cause was attributable to the previous Secretary Mahesh Belwal and as per the provisions of Section 141 (2) of the NI Act, he should also be deemed to be guilty of the offence under Section 138 of the said Act, but he has not been made a party obviously for the reason that Mr. Wazir Hassan was hand in gloves with Mr. Mahesh Belwal.

9. For the reasons recorded above, this Court is of the opinion that both the complaints are mischievous act of the complainant Wazir Hasan at the best of previous Secretary of the society Mr. Mahesh Belwal. Therefore, the trial in pursuance of these complaints cannot be permitted to proceed. Consequently, both the petitions are allowed. Impugned orders of cognizance dated 1.3.2006 and

29.3.2006 as well as the entire proceedings of both the aforementioned impugned complaint cases are hereby quashed.

10. Inform the court concerned accordingly.

27.7.2012 Prabodh (Servesh Kumar Gupta, J.)