TMI Blog2017 (3) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent/complainant is that Shanu Malik and Shahne Alam are the same person. The partnership deed placed on record is of the year 1999 and Form C is of the year 2013. There is no Form C filed by the parties for the relevant period, i.e. for the year 2011 when the alleged offence was committed. The determination of whether the petitioner was the partner of the Company- M/s Sabreen & Co. or he was responsible for the day to day affairs of the Company in presence of the letter dated 09.06.2011 would be determined after leading the evidences by the parties in the trial. Mere taking of the plea by the petitioner that he was not the partner of the Company- M/s Sabreen & Co. ipso facto does not dispels him from the alleged allegation u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayed as accused No. 3. 2. The brief facts stated are that a complaint under Section 138 of the Negotiable Instruments Act, 1881 was filed by the respondent/complainant on 05.10.2011 before the Court of learned Additional Chief Metropolitan Magistrate, (West) Delhi, against the Company M/s Sabreen Co., the present petitioner/Shane Alam and one Ishtiaq Ahmed as partners of the said Company respectively. 3. The basis of the complaint under Section 138 NI Act as alleged is that the petitioner had issued two post dated cheques, i.e. Cheque No. 056187 of ₹ 6,42,600/- and Cheque No. 056167 of ₹ 12,80,100/-, drawn on Oriental Bank of Commerce, Gejha Bhangel, Noida-201304 on behalf of the Company- M/s Sabreen Co. in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the allegations qua against the petitioner are false and relied upon following judgment: i. Monaben Ketanbhai Shah Anr. vs. State of Gujarat Ors; MANU/SC/0596/2004. ii. Vinod Zaveri Ors. vs. M/s Metallica Industries Ltd.; MANU/DE/2255/2009. 7. The learned counsel for the petitioner has submitted that the petitioner s name is also deleted which is between the same parties in the civil case dated 12.03.2016. 8. The learned counsel for the petitioner further submits that the Company- M/s Sabreen Co. belongs to the father and the brother of the petitioner, i.e. namely Istiyar Ahmad Anjum Pravez, respectively and they are the partners of the Company- M/s Sabreen Co. and the petitioner is not connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and not at this stage as it was the petitioner who has filed annexure P-2 which is the partnership document. 13. The learned counsel for the respondent has submitted that Form C dated 18.01.2013 is filed by the present petitioner to the sales tax department as in the name of Shanu Malik and the goods supplied are 1-7 which is claimed to be defective by the petitioner. It is further submitted that the goods supplied to the petitioner is qua against Shanu Malik. 14. The learned counsel for the respondent has further submitted that the Court below has rightly appreciated the facts on record and the impugned summoning order dated 29.08.2012 and the subsequent order of notice under Section 251 Cr.P.C. dated 27.11.2013 are just and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the Company- M/s Sabreen Co. dated 09.06.2011 which is reproduced as under: Date. 9.06.2011 It was made a final discussion with Sabreen and Co. and I.K. polymers (North) Pvt. Ltd. that the payment (Rs. 25,04600) againest the plastic raw material supply was not clear on its due date due to some funding issue of Sabreen Co. They confirm the payment was block in market due to material supply is not regular. Now it was finally discuss that Sabreen Co. will made the payment in 5 segment. Each segment will be 15 days. He will made payment 5 lacs in each segment. Total outstanding balance ₹ 25,04600 will be clear with in the period of 75 days. After one payment clear will start to supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be looked into at this stage and the onus for proving otherwise lies on the petitioner which can only be discharged at the trial. Reliance is placed on the judgment of this Court in the case MOJJ Engineering Systems Ltd. Ors. vs. A.B. Sugars Ltd.; 2009 (107) DRJ 142. 24. Therefore, in presence of the letter dated 09.06.2011 the plea taken by the petitioner loses its significance. Consequently, the impugned summoning order dated 29.08.2012 as well as the order on notice dated 27.11.2013 passed by the learned Metropolitan Magistrate, NI Act (West)/Delhi in C.C. No. 3871/1 does not warrant any interference by this Court to invoke inherent powers under Section 482 Cr.P.C. and the present petition is dismissed. 25. One copy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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