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2017 (10) TMI 1235 - HC - Indian LawsOffence punishable under Section 138 of the Negotiable Instruments Act - order passed in Criminal Complaint passed by the Metropolitan Magistrate by virtue of which the petitioners were summoned as accused - whether in presence of the final judgment and decree passed in Civil Suit of this Court, the impugned summoning order is bad in law? - Held NO The petitioners are invoking the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 to set aside the order dated 30th March, 2015 passed by the Metropolitan Magistrate, Saket District Court, New Delhi in Criminal Complaint whereby the application of the petitioners for stay of the proceedings under Section 138 of NI Act was dismissed ; to quash the Criminal Complaint and to set aside the order dated 13th December, 2010 passed by the Metropolitan Magistrate by virtue of which the petitioners were summoned as accused for offence punishable under Section 138 of the Negotiable Instruments Act. In the instant petition, the complaint under Section 138 read with Section 141 of the Negotiable Instruments Act was filed pertaining to dishonouring of the two cheques i.e. cheque no. 504080 dated 30.09.2010 of ₹ 4,35,00,000/- (Rupees Four Crores Thirty Five Lakhs Only) and second cheque no. 504081 dated 30.09.2010 of ₹ 97,69,266/- (Rupees Ninety Seven Lakhs Sixty Nine Thousand Two Hundred Sixty Six Only), which were dishonoured vide dishonor memo dated 15.10.2010 in respect of cheque no. 504080 and dishonor memo dated 16.10.2010 in respect to cheque no. 504081 with the remarks “Funds Insufficient”. Thereafter, the complainant/respondent issued two legal demand notices dated 26.10.2010 in respect of the two dishonoured cheques which was duly served upon the petitioners. The complainant/respondent at the same time also filed a Civil Suit (OS) No. 47 of 2011 for the recovery of ₹ 5,75,17,240/- before this Court and the same was decreed in favour of the present respondent on 19th March, 2013. The said decree was for a sum of ₹ 5,75,17,240/- with pendente lite interest @ 9% p.a. and future interest @ 15% p.a. Since the judgment and decree in the Civil Suit (OS) No. 47 of 2011 has attained finality between the same parties with respect to the same transaction and the counsel for the petitioner has not argued the case on merit as observed in order dated 27.03.2017 before this Court, the plea taken by the petitioners in the present case loses significance and this Court finds no merit to interfere with the impugned summoning order dated 13th December, 2010 and with the impugned order dated 30th March, 2015 passed by the Metropolitan Magistrate, South East, Saket Court in Criminal Complaint No. 2492 of 2015. 28. Consequently, the present petition is dismissed and disposed of accordingly. All the pending application(s), if any are also disposed of. One copy of this judgment be sent to the concerned Court(s).
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