1998 ALL MR (Cri) JOURNAL 6


Krishan Murari Gupta Vs. Hemant Kumar Sethi

Civil Revision No.1088 of 1997

6th November, 1997

Petitioner Counsel: Mr.A.S. CHADHIOK with Mr.B.L. WALI and Mr.D.S. CHADHA

(A) Negotiable Instruments Act (1881) S.138 - Criminal complaint for amount of cheque - Civil suit for recovery of principal with interest - Prayer for stay of civil suit disallowed by trial court - No interference called for in Revision.

(B) Negotiable Instruments Act (1881) S.138 - Dishonoured cheques - Recovery suit - Leave to defend Bills for sale proved - Order by trial court to deposit amount of principal - No irregularity in the order.

Cases Cited:
AIR 1977 SC 577 [Para 6]
68(1997) DLT 407 [Para 6]
67(1997) DLT 821 [Para 8]


JUDGMENT :- Petitioner is aggrieved by the order dated 16.9.97 of the Additional District Judge, granting leave to defend the Suit, subject to the condition that petitioner deposited a sum of Rs.2,50,000/- within four weeks failing which the application for leave to defend, would be dismissed and the suit shall stand decreed.

2. The respondent had instituted a Suit for recovery of Rs.4,30,000/- alongwith pendentelite and future interest. The respondents, who are jewellers, claimed in the Suit that the petitioners had purchased jewellery items worth Rs.2,50,000/- vide bills No.005 and 006 both dated 5.2.1994, and acknowledged the receipt of the jewels on the copy of the bills. The petitioners had issued 5 cheques of Rs.50,000/- each bearing Nos.544251 to 544255 dated 5.2.94, 20.2.94, 7.3.94, 21.3.94 and 25.4.94 respectively. The said cheques were dishonoured. The respondent/plaintiff thereupon, after issuing the notice filed a complaint under Section 138 of the Negotiable Instruments Act for the five dishonoured cheques. Subsequently the present suit was filed for recovery of the principal sum of Rs.2,50,000/- and the interest thereon of Rs.1,80,000/- @24% p.a.

3. The learned Additional District Judge in a detailed reasoned judgment, considered the various grounds raised in the application for leave to defend. He also considered the petitioners, prayer for stay of the civil suit pending the criminal proceedings under Section 138 of the Negotiable Instruments Act. After a detailed discussion of the various grounds raised in the application for leave to defend, learned Additional District Judge reached the conclusion that the petitioners, application for leave to defend be allowed subject to deposit of Rs.2,50,000/- i.e. the principal amount.

4. Learned Counsel for the petitioner Mr.A.S.Chandhiok urged that the learned Additional District Judge committed a grave error in travelling beyond the grounds set out in the application for leave to defend, by weighing the evidentiary value of the evidence of the documents as well as prejudging pleas, and then reaching a conclusion that the defence was bad. It is submitted that the learned Additional District Judge failed to appreciate that the transaction was a sale by samples and the jewels supplied not being as per samples, the petitioner was free to return the same and was not liable to pay the price of the jewels. The cheques had been obtained from the petitioner on the representation that the jewels were as per samples ordered and of good quality. Learned Counsel also referred to the unexplained delay in presentation of the cheques for a period of over two months, which supported the petitioner's version.

5. Learned Counsel argued that the learned Additional District Judge had failed to give due weight to the petitioner's plea that the total transaction was for Rs.2,80,000/- and the sum of Rs.30,000/- had been given as advance by a cheque drawn in the name of respondent's brother. Learned Counsel also referred to what he described as contradictions in the stand taken by the respondent in the present proceedings and those under Section 138 of the Negotiable Instruments Act. In the present proceedings, it was contended that the respondent's brother was having separate and independent business while in the complaint under Section 138 of the Negotiable Instruments Act, it was claimed that brother was not doing any business.

6. Learned Counsel for the petitioner also relied on the decision M/s.Mechalec Engineering & Manufacturers v. Basic Equipment Corporation reported at AIR 1977 Supreme Court 577 to urge that the petitioner's case fell within the para 8(c) i.e. case of not making positively and immediately a defence, but showing a defence which may be established during trial. The petitioner, it was claimed, was entitled to leave to defend, but the Court could impose condition as to "time or mode of trial but not as payment into Court or furnishing security". Learned Counsel for the petitioner also relied on M/s.International Computer Consultant v. Home Computers Services, 68(1997) DLT 407, where the Court granted unconditional leave to contest, when the cheque issued was an undated one. Although there was no agreement for payment of interest, but the suit has been decreed with interest. Learned Counsel relied on the above case in support of his contention that the Court at the stage of considering leave to defend, was not required to record a finding on disputed question of fact since the defendant was not required to adduce evidence and proof by which he was going to defend ultimately.

7. I have carefully considered the submissions of the learned Counsel for the petitioner. The learned Additional District Judge has considered the various grounds raised. The petitioners had pleaded that the respondent had left a packet containing the jewels which had not been inspected and the post dated cheques were given on 5.2.94. Further that the goods supplied were not even worth Rs.1,00,000/-. These pleas neither appear to be credible nor inspire any confidence. Respondent on the other hand, had denied the sale as sale by samples and submitted that the jewels had been duly inspected and the petitioners after being fully satisfied as to their quality, issued the cheques. Further, that the transactions in which a cheque of Rs.30,000/- was issued to the respondent's brother was a separate one and not connected with the present transaction. The cheque in favour of the respondent's brother was dated 18.12.1993 for Rs.30,000/- and was encashed on 22.12.93, while the negotiation for the present transaction itself, even as per the petitioner, had commenced on 29.12.1993. The learned Additional District Judge has also rightly held that there was no ground for stay of the civil suit during the pendency of the proceedings under Section 138 of the Negotiable Instruments Act. As regards the petitioner's submission of there being a contradiction in the explanation with regard to whether the respondent's brother was not carrying on any business or was having a separate and independent business, the same is hardly of any consequence so as to affect the decision in this case specially when the cheque for the same is said to be dated 18.12.93 and the present transaction even as per the petitioner commenced only on 29.12.93.

Having considered the submissions made by the learned Counsel for the petitioner, I am of the view that the order passed by the learned Additional District Judge granting conditional leave to the petitioner was fully justified and it cannot be faulted with. The present case in my view, clearly falls in the category of cases where conditional leave should have been granted subject to deposit of the amount as has been rightly done.

8. In the instant case also, the learned Additional District Judge relying on an earlier decision of this Court in Rama Vision Ltd. v. Babbar India Pvt.Ltd., 67(1997) DLT 821, has directed the deposit of principal amount leaving the question of interest to be adjudicated. I find no material irregularity or jurisdictional error warranting interference in revisional jurisdiction.

9. The learned Counsel for the petitioner, during the course of his submission, had prayed that in case the Court was not inclined to entertain the revision petition, further time be granted for making the deposit. In the circumstances, the time for making the deposit of Rs.2,50,000/- is extended by two weeks from today. The revision petition has no merit and is dismissed except for extention of time as aforesaid.

Revision Petition dismissed.