IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 577 of 2007 [ 1. Rajiv Gupta 2. Anuj Sarin 3. Manoj Sharma All Directors / Partners M/s Uttaranchal Food Private Limited A-8, Swasth Vihar, Vikas Marg, Delhi-96. ...…………. Petitioners 1. State of Uttarakhand Versus 2. Rajendra Kumar S/o late Nanak Chand R/o Hari Mandir Gali, Rudrapur, P.S. & Tehsil Kichha, District Udham Singh Nagar. ...…………. Respondents Mr. D.K. Sharma, Advocate for the petitioners. Mr. M.A. Khan, Brief Holder for the respondent No. 1 / State. Mr. Ajay Veer Pundir, Advocate for respondent No. 2 / complainant. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have sought quashing of proceedings of Criminal Complaint Case No. 1014 of 2007; Rajendra Kumar Vs. Rajiv Gupta and others, relating to offence punishable under Section 138 of the Negotiable Instruments Act, 1881, police station Rudrapur, pending in the court of Chief Judicial Magistrate, Udham Singh Nagar. 2 2) Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed on their behalf. 3) Brief facts of the case are that respondent No. 2 / complainant entered into an agreement on 30.09.2006 (unregistered agreement), at Rudrapur, wherein the complainant / respondent No. 2 has agreed to transfer 2.25 Acres of land of Plot No. 496, situated in Village Simla Pistor, Tehsil Kichha, District Udham Singh Nagar. An amount of Rs. 4,38,75,000/- were agreed as consideration for the sale, out of which Rs. 1,31,62,500/- were paid in cash. As to the rest of the amount, the payment was to be made through cheques. One of such cheque was cheque No. 825504 dated 22.01.2007, for an amount of Rs. 1,32,75,000/-. The complainant’s case is that when he presented said cheque it was not honoured due to the ‘stop payment’ directed by the petitioners to the bankers (Punjab National Bank, Chandra Nagar, District Ghaziabad). The complainant has further pleaded in the criminal complaint that even after giving notice dated 07.02.2007, the payment was not made, as such, criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, was filed before the trial court. 4) However, from the Annexure –4 to the petition, it appears that the petitioners had already informed the complainant vide notice dated 20th of January 2007, that 3 since land of Plot No. 496 is not owned by the complainant, as such, the bankers have been directed not to honour the cheque, and therefore, the petitioners are not liable to be prosecuted under Section 138 of the Negotiable Instruments Act, 1881. Apart from this, now in the counter affidavit the complainant / respondent No. 2 himself admits that he is not owner of the land (Plot No. 496) for which he had executed the agreement in favour of the petitioners. As such, it cannot be said that there was any liability on the part of the petitioners to make the payment. 5) Learned counsel for respondent No. 2 / complainant pleaded that by mistake, in the agreement, Plot No. 496 was mentioned instead of Plot No. 469, as such, the petitioners cannot escape the liability of making payment in terms of the agreement. Under the law, an agreement for sale of land is required to be registered. Admittedly, the agreement is unregistered one. The debt or liability which is mentioned in Section 138 of the Negotiable Instruments Act, 1881, must be a lawful debt or liability. Apart from this, though the complainant / respondent No. 2 has pleaded that by mistake in the agreement Plot No. 496 was mentioned instead of Plot No. 469, but perusal of affidavit dated 17.03.2007, filed before the Chief Judicial Magistrate, Udham Singh Nagar (copy of which is Annexure –1 to the petition in support of the impugned criminal complaint) shows that complainant / respondent No. 2 has pleaded that he is owner of Plot No. 496. In 4 the first paragraph of the affidavit (copy Annexure –1 to the petition) it is clearly mentioned that the respondent No. 2 / complainant is owner of Plot No. 496. Had it been a typographical mistake in the agreement, there should have been no difficulty on the part of the complainant to correctly mention Plot No. 469 in paragraph No. 1 of the criminal complaint, and in the paragraph No. 1 of the affidavit, filed in support of the criminal complaint. That being so, it appears that the impugned criminal complaint is nothing but abuse of process of law on the part of the respondent No. 2 / complainant to initiate criminal proceedings against the petitioners without transferring the land to them. 6) For the reasons as discussed above, this petition under Section 482 of Cr.P.C., deserves to be allowed. The petition is allowed. Proceedings of Criminal Complaint Case No. 1014 of 2007, Rajendra Kumar Vs. Rajiv Gupta and others, relating to offence punishable under Section 138 of the Negotiable Instruments Act, 1881, police station Rudrapur, District Udham Singh Nagar, pending in the court of Chief Judicial Magistrate, Udham Singh Nagar, are hereby quashed. (Prafulla C. Pant, J.) Dt. April 21, 2010. H. Negi