The High Court of Delhi has dismissed a petition seeking to quash a summoning order in a cheque dishonour case, terming the plea “not just devoid of merit but completely frivolous.” Justice Girish Kathpalia, while rejecting the petition filed by Smt Rama Oberoi, imposed costs of Rs. 10,000 and affirmed that the pendency of a civil recovery suit does not bar criminal proceedings under Section 138 of the Negotiable Instruments Act.
Background of the Case
The petitioner, Smt Rama Oberoi, had approached the High Court challenging an order dated 12.06.2025, passed by a trial magistrate. The said order had summoned her to face trial for an offence under Section 138 of the Negotiable Instruments Act, 1881, following the dishonour of cheques allegedly issued by her. The petitioner sought the quashing of these proceedings.
Arguments of the Petitioner
On behalf of the petitioner, counsel Mr. Bibek Tripathi raised three primary contentions before the High Court:
- The complaint filed against the petitioner was premature, arguing that the statute requires a complaint to be filed after 45 days of the statutory notice.
- The cheques in question did not bear the actual signatures of the petitioner.
- Since the complainant (respondent no. 2) had already filed a civil suit for the recovery of the outstanding amount related to the same transaction, the criminal complaint under the Negotiable Instruments Act was not maintainable.
Court’s Analysis and Findings
After hearing the arguments, Justice Girish Kathpalia found no merit in the petition and did not deem it a “fit case to even issue notice.”
On the Maintainability of Parallel Proceedings
The Court first addressed the argument regarding the co-existence of civil and criminal remedies. It was held that an aggrieved person can avail both remedies for the same transaction. The judgment clarified the distinction between the two, stating, “What has been filed by the present respondent through civil suit is a civil remedy pertaining to civil liability of the petitioner to pay the outstanding amount. The complaint case filed by the present respondent pertains to criminal liability where despite being served with a statutory notice after dishonour of cheque, the petitioner/accused opted not to pay.”
The Court further observed that the objectives of the two proceedings are different. “The goal of the civil suit is the decree of the suit amount while the goal of the criminal proceedings is imposition of punishment, which can be imprisonment as well,” the order stated. Consequently, the Court found “no bar on the respondent proceeding with both remedies simultaneously.”
On the Complaint Being Premature
The Court described the petitioner’s argument that the complaint was premature as “completely devoid of merit.” Justice Kathpalia clarified the timeline prescribed under the Negotiable Instruments Act. The judgment explained that the 45-day period is not a single consolidated block but consists of two distinct periods: 15 days for the drawer to pay after receiving the statutory notice (proviso (c) to Section 138), followed by a 30-day period (referred to as “one month” in the Act) to file the complaint.
Applying this to the facts, the court noted that the statutory notice was served on the petitioner on 22.09.2022. The 15-day period to make the payment expired on 07.10.2022, upon which the cause of action arose. The complaint could then be filed by 06.11.2022. As the complaint was filed on 29.10.2022, the Court concluded it was “within the prescribed period of limitation to file such complaint.”
On the Issue of Signatures
Regarding the final argument that the signatures on the cheques were not genuine, the Court observed that both cheques clearly bear the petitioner’s name in print as the drawer/signatory. It ruled that the question of authenticity is a matter of evidence to be decided during the trial. The Court reiterated the established legal principle that it would not conduct a “mini trial” while exercising its jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). “Whether or not those signatures under name of the present petitioner/accused are genuine is a matter of trial,” the judge stated.
Decision
Concluding that the petition was frivolous, the High Court dismissed it with costs of Rs. 10,000. The petitioner was directed to deposit the amount with the Delhi High Court Legal Services Committee (DHCLSC) within two weeks. A copy of the order was also directed to be sent to the learned trial court to ensure compliance with the imposition of costs.
