Criminal Misc. No. M-9470 of 2010 v. Gyanender Tewatia

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Lokesh Sinhal, Advocate, for the petitioners. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing Complaint No. 426, dated 23.07.07, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be called as the 'Act' only) (Annexure P4), the summoning order dated 15.09.07, passed by the Additional Chief Judicial Magistrate, Faridabad (Annexure P5), and all the subsequent proceedings, arising therefrom, has been filed by the petitioners. Criminal Misc. No. M-9470 of 2010 2

2. Petitioner No. 1, through Petitioner No. 2, purchased land, from the grand-mother of the complainant, namely Kela Devi wife of Sh. Sawan Singh, vide registered sale deed, for a total sale consideration of Rs. 3,96,41,875/-. A sum of Rs. 39,64,188/-, was paid, through cheque. The cheques, mentioned below, were issued, for the payment of remaining sale consideration:- Cheque No. Amount Bank 378531 378532 Rs. 59,46,281/- HDFC Bank Rs. 2,97,31,406/- HDFC Bank

3. Cheque No. 378531, for a sum of Rs. 59,46,281/-, was got encashed, by Kela Devi, grand-mother of the complainant. However, the other cheque, for a sum of Rs. 2,97,31,406/-, was not presented, on the request of the petitioners and their co-petitioners, as they were not having sufficient funds, in the account, to honour the same. Since cheque No. 378532, for a sum of Rs. 2,97,31,406/-, was not cleared, the respondent, suffered a loss of Rs. 25 lacs. In order to compensate and make good the loss of Rs. 25 lacs, suffered by the complainant/respondent, the petitioners, issued five cheques of Rs. 5 lacs each. When cheque No. 378919, dated 15.01.07, out of the aforesaid five cheques, was presented, the same was dishonoured. A statutory notice, was given, to the petitioners, to pay the amount, but to no avail. After the expiry of the stipulated period, a criminal complaint, under Section 138 of the Act, was filed.

4. After recording the preliminary evidence, the trial Court, summoned the petitioners, as accused, for the offence, punishable Criminal Misc. No. M-9470 of 2010 3 under Section 138 of the Act.

5. An application, was filed, on behalf of the petitioners/accused, for dropping the proceedings, on the ground, that believing and trusting the assurance of Smt. Kela Devi, the petitioners, agreed to purchase the land, in question, for a sale consideration of Rs. 3,96,41,875/-. It was further stated that the petitioners, came to know, that though, at the time of execution of the sale deed, it was stated, that the land, was free from all encumbrances, yet, it was found, later on, that it was the subject matter of litigation. It was further stated that five cheques, were given, by the petitioners, on account of interest, as, it was represented, that there was delay, in making the payment. It was further stated, in the application that, when the petitioners, came to know, that the land, was the subject matter of litigation, they demanded the cheques back, but the same, were misused and a legal notice, was issued, to them, and, ultimately, a criminal complaint, was filed.

6. After hearing the Counsel for the parties, the application, was dismissed.

7. Feeling aggrieved, the instant petition, has been filed, by the petitioners.

8. I have heard the Counsel for the petitioners, and, have gone through the documents, on record, carefully.

9. The Counsel for the petitioners, submitted that, the cheques, were not issued, in the discharge of legally enforceable Criminal Misc. No. M-9470 of 2010 4 liability, by the petitioners, and, as such, no offence, punishable under Section 138 of the Act, was constituted. He further submitted that, the Court below, was wrong, in dismissing the application, for dropping the proceedings. He further submitted that, the order, being illegal, is liable to be set aside.

10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioners, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The trial Court, after going through the preliminary evidence, came to the conclusion, that sufficient ground, was made out, for summoning the accused. The accused, were summoned accordingly, for the offence, punishable under Section 138 of the Act. Whether the cheque, given, by the petitioner, was in the discharge of legally enforceable liability or not, is a question of fact, which can be proved, by leading evidence, during the trial of the case. At the preliminary stage, it could not be said, that the said cheque, was not allegedly issued, in the discharge of legally enforceable liability. The complainant, during the course of trial of the complaint, shall be afforded an opportunity, to lead evidence, as to whether, the cheque, was issued, in the discharge of legally enforceable liability, or not. Similarly, the petitioners, shall also be afforded an opportunity, to rebut the evidence, so led, by the complainant. At this stage, it cannot be said, that the complaint, as also the summoning order, are in any way illegal. The allegations, contained in the complaint, and the preliminary evidence, led, in Criminal Misc. No. M-9470 of 2010 5 support thereof, clearly constituted the offence, punishable under Section 138 of the Act. The disputed question of fact, cannot be determined, in the proceedings, under Section 482 Cr.P.C., which are summary in nature. No ground, therefore, is made out, for quashing the complaint, as also the summoning order.

11. For the reasons recorded above, Criminal Misc. No. M-9470 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

12. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.

07.05.2010 Amodh (SHAM SUNDER) JUDGE