Pawan Sachdeva vs State (U.T., Chandigarh)

M.L. Singhal, J.—Through this Crl. Misc. No. 28198-M of 1998 Pawan Sachdeva. Sadhna Sachdeva and Krishna Sachdeva who arc Managing Director and Director respectively of M/s. M.S. Shoes Ltd. have proved for the grant of bail to them in case FIR No. 304 dated 5.10.98 under Sections 420/467/471 IPC of PS Sector 17. Chandigarh.

Briefly stated, that alleged facts which have given rise to this case arc as follows:-

M/s Modella Knitwears Ltd. SCO 44. Sector 17-E. Chandigarh (Complainant) through Shri Ashok Goyal, its authorised appointed Representative of the company instituted complaint u/s 138 of the Negotiable Instruments Act (in short the Act) against the petitioners (herein) on the allegations that the complainant is a company incorporated under the Companies Act. 1956. Arun Goyal is the managing Director of this company while Ashok Goyal and M.L. Goyal arc Directors of the company This company is manufacturer of high class hosiery items. M/s. M.S. Shoes (accused) is also a company Pawan Sachdeva and his wife Sadhna Sachdeva approached the complainant company for the purchase of hosiery items for their business on behalf of their company, As per their orders, hosiery items were despatched from time to time. Transactions between these two companies took place w.e.f. 10.6.93 to 26.10,95. Complainant company has been maintaining the accounts pertaining to the transactions vis-a-vis the issue of bills and payments as and when received recorded therein. Payments were not made in time as per settled terms and conditions but the complainants accepted the delayed payments at the request and assurance of the accused persons so that their business relations remained cordial. Liability qua the total supply of the hosiery items which was duly received by the accused reached Rs. 1.53.48.740/-. In order to discharge part of the liability, the accused persons issued cheque No. 87400-110022022 dated 28. 10.95 for Rs. 50.97.320/- pay able to Oriental Bank of Commerce. New Delhi. Cheque was issued and given by Pawan Sachdeva M.D. of the accused company at Chandigarh in the office of the complainant. Sadhna Sachdeva. Director of the accused company was also present at that lime along with Pawan Sachdeva. Cheque was presented by the complainant company in its account with Canara Bank. Sector 17-C. Chandigarh for its realization through clearance. Cheque was returned unpaid by the Canara Bank with memo dated 27.2.96 recording insufficient funds issued by the Oriental Bank of Commerce. New Delhi. Thereafter, the complainant filed complaint u/s 138 of the Act allegedly after complying with the procedure laid down in that Act at Chandigarh. During the period, since the accused side owed some amount to the sister concern M/s. Pearl Intercontinental Ltd. of the complainant side, accused made payment on 26.11.96 of Rs. 40 lacs through two bank cheques No. 048165 and 048166 each for Rs. 20 lacs on 11.12.96 i.e. the date filed in the complaint case u/s 138 of the Act. The accused produced receipt which was alleged to have been issued by the complainant company acknowledging the bankers cheque of Rs. 40 lacs and in the receipt, it was also slated that the amount of Rs. 40 lacs had been received in full and final settlement of the claim of the complainant company i.e. laid in the said complaint u/s 138 of the Negotiable Instruments act. No such receipt was issued by the complainant. Accused forged this receipt with a view to secure the dismissal of the complaint u/s 138, of the Act. Accused produced the forged receipt with a view to the court holding that in view of receipt the entire claim stood fully satisfied. In complaint u/s 138 of the Act this plea of the accused did not find favour with the court and complaint was not dismissed. As per complainant company Receipt relied upon by the accused was neither signed by the complainant company nor issued by the complainant company. As per the complainant, the accused went on producing the forged documents in court in the complaint u/s 138 of the Act and 3 invoices/bills MKL/93/01. MKL/93/02 and MKL/93/03 all of date 10.6.93 for Rs. 7.30,800/- and these bills were forged with the fictitious signatures similar to the signatures appearing on the receipt. As per complainant the bills/invoices book, out of which these 3 bills were tried to be shown, do not tally with the printing subject and other ingredients of the bills which stand issued to the accused by them. Bills are issued by the complainant company from this bill book to the accused from MKL/93/01 to MKL/93/03. Complainant comp am produced 3 carbon copies of bills No. MKL/93/01 to MKL/93/03 and these carbon copies tally with the bills No. NKL/93/04 to MKL/93/11 and MKL/93/13 to MKL/93/18. As per the complainant forgery was therein these three bills and there was no other purpose of forgery of these 3 bills except to tally with the receipt bearing signatures like the bills in hand, otherwise, the payment against all bills starting from MKL/93/01 from this bill book onwards always stands received by the complainant from the accused. In complaint u/s 138 of the Act, Shri B.C. Gupta. Additional Chief Judicial Magistrate, Chandigarh convicted and sentenced Pawan Sachdeva to undergo R1 for a period of one year and to pay fine of Rs. 12,000/- in default of payment of fine to undergo further R1 for 3 months. Accused company was also sentenced to pay fine of Rs. 13.000/- u/s 138 of the Act. Receipt-cum-undertaking did not find favour with the court.

M/s. Modella knitwears Ltd. instituted complaint under Sections 420. 467,471 120-B IPC in the court against M/s. M.S. Shoes Ltd. (Company). Pawan Sachdeva. Managing Director. Mrs. Sadhna Sachdeva. Director and Mrs. Krishna Sachdeva. Director of this company. Complaint was sent to the police station of u/s 156(3) Cr.PC for registration of the case and investigation thereof. This is how this case was registered.

Learned counsel for the petitioners submitted in support of this prayer for anticipatory bail to the petitioners that Pawan Sachdeva and M/s Modella Knitwears Ltd. resolved the matter after negotiations and finally on 26.11.96 Pawan Sachdeva handed over to respondent's M.D. and Director two bankers cheques dated 26.11.96 which were of Rs. 20 lacs each. Later on the same day, the receipt-cum-undertaking signed by the authorised signatory of respondent No. 2 was delivered at the house of the petitioners in Delhi. As per the receipt, an undertaking was given to withdraw the said complaint u/s 138 of the Act against the accused. The payment of Rs. 40 lacs was accepted as full and final discharge of the liability mentioned in the cheque worth Rs. 50.97.330/- dated 28.10.95 which was allegedly bounced. It was submitted that complaint u/s 138 of the Act was not withdrawn by respondent No. 2. Petitioner's prayer filed u/s 482 Cr. P.C. for quashing the complaint was dismissed by the High Court in view of the stand taken by respondent No. 2 that it was a question of fact. An application u/s 340 Cr. P.C. was also filed by respondent No. 2 requesting the court to file complaint for forgery etc. against the petitioners. Application u/s 340 Cr. PC was withdrawn by respondent No. 2. It was submitted by the learned counsel for the petitioners that in the course of the evidence recorded in application u/s 340 Cr. P.C. it was the case of the complainant party that there are only 3 authorised signatories of the complainant company but during the recording of the evidence in the main case i.e. complaint u/s 138 of the Act. Arun Goyal CW3 stated that were 4 authorised signatories. No other person was authorised to sign and interact with the clients, govt. officers, corporations, etc. on behalf of the complainant company. Accused petitioners, during the cross-examination of Arun Goyal CW3 also got exhibited documents indicating that number of other persons have been signing as authorised signatories on behalf of the complainant company, during the cross-examination of Arun Goyal, accused petitioners brought on record 3 original invoices No. 1.2 and 3 dated 10.6.93 which had been signed by the same person who had signed the receipt-cum-undertaking dated 26.11.1996. Allegation of the complaint company was that the said invoices were forged documents. Accused during their defence evidence, got the opinion of Shri K.N. Prasad, handwriting expert which is to the effect that the receipt dated 26.11.1996 and the voices No. 1. 2 and 3 dated 10.6.93 have been signed by the same person. It was submitted that during cross-examination, the complaint company made every effort to withdraw from the court the copies of invoices No. 1, 2 and 3 dated 10.6.93 even though they had been demanded by the accused to be produced before the court for effective cross-examination and order for such production was passed on 20.9.97 by the court. It was submitted that complaint of the complainant company that Rs. 40 lacs had been received in part discharge of the liability of his sister concern of the accused company but when the deposit slips filled by the complainant company for withdrawing Rs. 40 lacs from the bank were got summoned the name of accused company i.e. M/s. M.S. Shoes Ltd. was found written on them. It was further Submitted that it is not believable that the petitioners would try to pay Rs. 40 lacs for discharging the alleged liability of another company on which there was no case, criminal or civil It was submitted that viewed in this perspective, the receipt-cum-undertaking cannot be said to be forged.

Learned Standing Counsel for U.T. Chandigarh assisted by Shri R.S. Ghai. Senior Advocate submitted that Pawan Sachdeva petitioner was convicted and sentenced to undergo R1 for one year to pay fine of Rs. 12,000/- or in default to undergo further R1 for 3 months u/s 138 of the Act by the Additional Chief Judicial Magistrate. Chandigarh. It was submitted that the learned Magistrate did not believe the receipt-cum-undertaking to be genuine. He did not believe that the receipt-cum-undertaking put an end to the claim of M/s. Modella Knitwears Ltd. against M/s. M.S. Shoes Ltd. Learned counsel for the petitioners, on the other hand, submitted that the petitioner has gone in appeal against the said order of Magistrate and his sentence has been stayed. He further submitted that the court should not express any opinion about the genuineness or otherwise of that receipt-cum-undertaking as any expression of opinion might prejudice the case of either party. Since in complaint u/s 138 of the Act., only Pawan Sachdeva was convicted. I think equities demand that anticipatory bail should be allowed to Mrs. Sadhna Sachdeva and Krishna Sachdeva more so they arc women. It is therefore, ordered that in the event of arrest of Mrs. Sadhna Sachdeva and Mrs. Krishna Sachdeva, the investigating officer will call upon them to furnish bail. They shall make themselves to the investigating officer as per his direction. So far as Pawan Sachdeva is concerned, his prayer for anticipatory bail is also allowed. Anticipatory bail allowed to Pawan Sachdeva will, however, enure till the decision of appeal of Pawan Sachdeva by the Sessions Court filed by him against his conviction and sentence recorded u/s 138 of the Act. If his appeal is dismissed, anticipator bail enduring in his favour will come loan end. Learned Sessions Judge will decide that appeal any lime but positively before 31.10.1999.

Disposed of accordingly.