In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc.-M No.24427 of 2008 ..... Date of decision:20.1.2009 Rajinder Garg and another .....Petitioners v. M/s Anshul Trading Company through its proprietor Smt. Raksha Rani .....Respondent .... Present: Mr. Sanjay Tangri, Advocate for the petitioners. Mr. G.C. Shahpuri, Advocate for the respondent. ..... S.S. Saron, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' - for short) seeking quashing of complaint cases No.605 and 606 dated 7.12.2007 (Annexures-P.14 and P.15) pending in the Court of Additional Chief Judicial Magistrate, Jagadhri alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (`Act' – for shot) and all consequential proceedings arising therefrom relating to cheques No.401859 dated 17.5.2007 and 401858 dated 30.4.2007 drawn on Punjab National Bank, Sector 17-B, Chandigarh in favour of respondent-M/s Anshul Trading Company. Heard learned counsel for the parties. The respondent has filed two complaints dated 7.12.2007 (Annexures-P.14 and P.15) wherein it has been alleged that the petitioner is a manufacturer of S.W. Pipes, Fittings all sizes, Fire Bricks, Fire Clay, B.P. Sets and all kinds of refractories etc. and for that purpose the petitioner-firm Cr. Misc.-M No.24427 of 2008 [2] used to purchase wood balan/Rakhi from the complainant-respondent firm. The petitioner-firm purchased wood balan/Rakhi for an amount of Rs.10,72,677.75 from the complainant-respondent upto 2.6.2007. The petitioner made default in making its due payments and on account of that the husband of the complainant remained under depression for a long period and became weak day by day and ultimately he suffered a heart attack and lost his life. In any case, it is alleged that the petitioner in discharge of its existing liability gave two cheque No.401859 dated 17.5.2007 for an amount of Rs.1 Lac and cheque No.401858 dated 30.4.2007 for a sum of Rs.1 Lac. Both the cheques were drawn on Punjab National Bank, Sector 17-B, Chandigarh. The complainant presented the cheques in question within the period of their validity to the Punjab National Bank, Bhagwangarh, District Yamuna Nagar. However, cheque No.401859 dated 17.5.2007 was not honoured and was returned vide memo dated 22.10.2007 with the endorsement “stop payment”. Similarly, cheque No.401858 dated 30.4.2007 was also not honoured and was returned vide memo dated 3.5.2007 with the endorsement “stop payment”. The complainant then again presented cheque No.401858 dated 30.4.2007 and it was again returned back vide memo dated 22.10.2007 with the endorsement “stop payment”. The respondent got served two separate legal notices. Legal notice dated 20.11.2007 was sent as regard cheque No.401859 dated 17.5.2007. Besides, legal notice dated 17.11.2007 was got served as regard cheque No.401858 dated 30.4.2007. According to the respondent, the said notices have been duly received by the petitioners and acknowledgment due of the same have been received back. It is also stated that the petitioners did Cr. Misc.-M No.24427 of 2008 [3] not give any reply as regards cheque No.401859 dated 17.5.2007. However, a reply dated 28.11.2007 (Annexure-P.2) was received as regards cheque No.401858 dated 30.4.2007. It is submitted that the petitioners sent a registered AD as well as UPC envelopes to the complainant-respondent and to her counsel, but to his surprise, all the four envelopes contained only photo copies of demand draft No.781136 dated 28.11.2007. As such till date the accused (petitioner) had neither made the payment of the cheques in question to the complainant (respondent) by sending the original demand draft nor gave any reply of the notice. The petitioners had in fact sent a reply dated 28.11.2007 (Annexure-P.2) to the legal notice dated 17.11.2007 regarding dishonour of cheque No.401858 dated 30.4.2007. In terms of the reply the petitioner under protest submitted demand draft No.781136 dated 28.11.2007 for an amount of Rs.1 Lac drawn on Punjab National Bank, Sector 17-B, Chandigarh being the amount towards cheque No.401858 dated 30.4.2007. It is also mentioned in the reply (Annexure-P.2) that the petitioner had received three registered AD envelopes out of which only one envelope contains original copy of the legal notice dated 17.11.2007 and is duly signed. The same is in regard to cheque No.401858 dated 30.4.2007. The other two envelopes, it is stated, contain just photo copy of the legal notice dated 17.11.2007. It has also been mentioned that in fact two cheques bearing No.401858 and 401859 for Rs.1 Lac each were handed over to Shri Vijay Kumar Proprietor Anshul Trading Co. on 25.4.2007 as security only. The respondent was also asked if any legal notice in regard to cheque No.401859 had been issued and as to whether the said cheque had also been dishonoured. The respondent admittedly sent reply dated 6.12.2007 Cr. Misc.-M No.24427 of 2008 [4] (Annexure-P.4) in which it was submitted that only photo copy of DD No.781136 dated 28.11.2007 was found in the envelope. However, no mention is made with regard to presentation of cheque No.401859 and whether any legal notice in that regard had been sent. The petitioners then sent a telegram (Annexure-P.5) asking the respondent to intimate the account number to which the amount against alleged dishonour of cheque can be deposited or transferred without admitting their liability and also to let the petitioners know whether cheque No.401859 was also presented by the respondent and its status and whether any notice under Section 138 of the Act was issued or not. The petitioners through their counsel then sent reply dated 9.12.2007 (Annexure-P.6) to the legal notice dated 17.11.2007 and letter dated 6.12.2007 (Annexure-P.4). The petitioner again stated that legal notice had been received in respect of cheque No.401858 and they be informed the account number so that the amount could be transferred/ deposited in the account of the respondent. It is also mentioned that the petitioner be intimated whether cheque No.401859 had been presented by the respondent and whether it had been dishonoured and whether any notice had been sent. Thereafter, the petitioners filed a civil suit dated 13.12.2007 (Annexure-P.7) seeking mandatory injunction directing the defendants i.e. the respondent herein and Smt. Raksha Rani wife of Late Sh. Vijay Kumar to disclose as to whether cheque No.401859 drawn on Punjab National Bank on the account of the plaintiff (petitioner) given as security to defendant No.1 through its proprietor late Shri Vijay Kumar Garg has been presented for encashment or not and as to whether any notice under Section 138 of the Act has been issued qua the said cheque. Besides, for directing Cr. Misc.-M No.24427 of 2008 [5] the defendants to disclose the account No. in which the amount of dishonoured cheque/cheques could be deposited or any other mode through which the said amount be paid to the defendants. Relief of permanent injunction was also sought for restraining the defendants from initiating legal proceedings against the plaintiffs qua cheques No.401858 and 401859. The said suit was accompanied by an application under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code for the grant of temporary injunction. In the suit (Annexure-P.7) that was filed by the petitioners, the defendants were served and they appeared on 21.12.2007. They sought time to file written statement. On 3.1.2008, the respondents filed their written statement and it was disclosed that complaint under Section 138 of the Act had been filed regarding dishonour of cheques No.401858 and 401859. The petitioners through their counsel ascertained the proceedings under Section 138 of the Act and found that the complaints were listed for hearing on 22.1.2008 and 23.1.2008 for consideration on the point of summoning the accused. The said suit was, therefore, withdrawn on the filing of the complaints by the respondent. The petitioners, before the summoning orders could be issued in the complaint cases, appeared in Court on 22.1.2008 and submitted demand draft in respect of the due amount. An order dated 22.1.2008 (Annexure-P.10) was passed by the Additional Chief Judicial Magistrate, Jagadhri which is to the effect that the applicants (petitioners herein) appeared with counsel and moved an application for directing the complainant to accept the demand draft for an amount of Rs.1 Lac against payment of cheque No.401859 dated 17.5.2007. Counsel for the accused (petitioners) made a statement that he wants to make payment of cheque Cr. Misc.-M No.24427 of 2008 [6] No.401859 dated 30.4.2007 (sic. – 17.5.2007) and the same be given to the complainant for which he submitted demand draft No.783708 dated 18.1.2008 (Annexure-P.9). In view of the statement of learned counsel for the accused (petitioners) the learned Additional Chief Judicial Magistrate, Jagadhri asked the complainant (respondent) to accept the said draft but she refused to accept the same. However, she sought some time to think over the matter and the case was adjourned to 7.3.2008 for consideration on the point of summoning the accused. Thereafter, similar order dated 22.1.2008 (Annexure-P.11) was passed in respect of cheque No.401858 dated 30.4.2007. However, in the orders (Annexures-P.10 and P.11) that have been placed on record and which have been passed by the learned trial Court, cheque No.401859 dated 17.5.2007 and draft No.783708 dated 18.1.2008 (Annexure-P.9) has been mentioned inadvertently in both the orders. In fact, separate drafts No.783070 dated 27.11.2007 duplicate issued on 9.1.2008 (Annexure-P.8) and draft No.783708 dated 18.1.2008 (Annexure-P.9) for a sum of Rs.1 Lac each were tendered. In short, the position is that the petitioners tendered two demand drafts (Annexures-P.8 and P.9) for the payment of the due amount to the complainant-respondent and the complainant was asked to accept the same but the complainant sought time to think over the matter. The case was adjourned to 7.3.2008. Thereafter, vide order dated 7.3.2008 the case was adjourned to 28.3.2008 on the request of counsel for the accused. On 28.3.2008 (Annexure-P.12) it is recorded that the accused (petitioners) had presented draft dated 28.11.2007 for Rs.One Lac to be given to the complainant but the complainant had refused to receive the same on the ground that the same Cr. Misc.-M No.24427 of 2008 [7] had been presented after expiry of statutory period of 15 days. On the said date i.e. 28.3.2008 despite calling the case several times neither the accused nor his counsel appeared. Accordingly, notice was issued to the petitioner for 4.6.2008. The petitioner appeared on 9.9.2008 and was admitted to bail. The file was ordered to be put up on 19.9.2008, the date already fixed. Similar orders were passed in the connected complaint case. Thereafter, the summoning orders in both the complaints were passed on 24.11.2008 (Annexures-P.16 and P.17). Learned counsel for the petitioners has contended that the petitioners had been ready to pay the amount throughout and two separate drafts of Rs.1 Lac each were tendered even before the summons had been issued in the case. In fact, one draft for an amount of Rs.1 Lac i.e. draft No.781136 dated 28.11.2007 was tendered for the cheque No.401858 dated 30.4.2007 vide reply dated 28.11.2007 (Annexure-P.2) to the legal notice dated 17.11.2007 of the complainant (respondent). Besides, it was specifically asked in the reply (Annexure-P.2) if cheque No.401859 had been presented and whether it was dishonoured. In fact, in regard to cheque No.401859 the learned counsel stated that the petitioner did not receive any notice and he tendered the amount even before the summoning order was issued. Therefore, evidently in regard to cheque No.401858 the amount had been tendered within the period of 15 days and as regard cheque No.401859 the amount had been tendered in Court before the summoning order was passed. Learned counsel for the respondent has, however, submitted that no payment was made by the petitioners within the statutory period as provided under the Act and, therefore, it is incorrect to say that the Cr. Misc.-M No.24427 of 2008 [8] necessary payment had been made. The payment was liable to be made by the petitioners in discharge of their existing liability within the time fixed. The same having not been paid the petitioners are liable for the offence that is attributed to them. The position as has been noticed above is that the petitioners had indeed made efforts to make due payment of the two cheques which had been dishonoured. The petitioners had received one notice dated 17.11.2007 which was in respect of cheque No.401858 dated 30.4.2007. The petitioners filed reply dated 28.11.2007 (Annexure-P.2) to the said notice and submitted demand draft No.781136 dated 28.11.2007 for an amount of Rs.1 Lac. Besides, in the said notice, it was specifically inquired as to whether the cheque No.401859 for a sum of Rs.1 Lac has been dishonoured and it was requested that this be intimated so that the needful may be done. Nothing has been stated by the respondent to show regarding any intimation having been given to the petitioner about the dishonour of cheque No.401859. The respondent in fact vide letter dated 6.12.2007 (Annexure-P.4) only intimated that photo copy of DD. No.781136 dated 28.11.2007 had been found in said envelope. In fact the DD was with one of the letters and in response to the other notices photo copies had been sent. The petitioners also sent a telegram (Annexure-P.5) in which they asked for the account No. in which the amount against the alleged dishonour of cheque could be deposited or transferred without admitting their liability and under protest. Thereafter, the petitioners through their counsel sent a reply (Annexure-P.6) to the legal notice dated 17.11.2007 and letter dated 6.12.2007 (Annexure-P.4) of the respondent. In the reply, it was once again asked to intimate the account number to which the amount of the alleged Cr. Misc.-M No.24427 of 2008 [9] dishonoured cheque/cheques (if any), could be deposited/transferred/ electronically transferred or any other mode by which the respondent would like to receive the amount. The respondent was also once again asked to intimate whether cheque No.401859 had been presented and whether it had been dishonoured. Besides, whether any notice had been sent regarding the same. It was submitted that the petitioners were ready and willing to make the payment of the same as well. The petitioners also filed a civil suit (Annexure-P.7) seeking mandatory injunction to disclose whether cheque No.401859 had been presented by the respondent for encashment or not and whether any notice under Section 138 of the Act had been issued. A further prayer was made for directing the respondent to disclose the account number in which the amount of the dishonoured cheque/cheques could be deposited. Along with the suit, an application for temporary injunction was also filed. The petitioners have also placed on record the demand drafts (Annexures-P.8 and P.9) in terms of which Rs.1 Lac is shown to be payable to the respondent. Therefore, the petitioner has done all that he could in order to avoid his liability from being prosecuted for the offence under Section 138 of the Act. The only stand taken by the respondent is that Section 138 of the Act is made out as the payment was not made or tendered within the statutory period after the issuance of notices. In fact, the amount of Rs.1 Lac insofar as cheque No.401858 is concerned had been tendered within the period prescribed. Letter dated 28.11.2007 (Annexure-P.2) was sent by the petitioners vide which demand draft No.781136 dated 28.11.2007 was tendered in response to legal notice dated 17.11.2007. This was within the statutory period. As regards, cheque Cr. Misc.-M No.24427 of 2008 [10] No.401859, the case of the petitioners is that they had not received any legal notice although they had been willing to pay the said amount also under protest. It is not shown by the respondent as to whether any legal notice in respect of cheque No.401859 had been served upon the petitioners. Even if it is a matter of evidence, it may be noticed that the petitioners tendered the amount of Rs.1 Lac as against the said cheque even before the summoning orders was issued which is evident from the orders dated 22.1.2008 (Annexures-P.10 and P.11) which have been passed in the two separate complaints No.605 and 606 of 2/7.12.2007. Copies of the drafts (Annexures-P.8 and P.9) that were tendered have been placed on record. In C.C. Alavi Haji v. Palapetty Muhammed and another, 2007 (3) Civil Court Cases 1 (SC), it was observed by the Supreme Court that where there is a claim as to non-receipt of notice the drawer can still make the payment of cheque amount within 15 days of the receipt of summons and can absolve himself of prosecution under Section 138 of the Act. If the drawer does not make payment of cheque amount within 15 days of the receipt of summons then plea of proper service of notice is not available to him. In the present case in respect of one cheque the amount of Rs.1 Lac was tendered within 15 days of the notice and in respect of other cheque it was tendered even before the summoning orders were passed on 24.11.2008 (Annexures-P.16 and P.17). Therefore, no criminal liability of the petitioners is made out. Learned counsel for the respondent states that the respondent is a poor widow and her husband had died last year and, therefore, she may be allowed to get the amount in question as she will not be able to recover the amount. Cr. Misc.-M No.24427 of 2008 [11] Learned counsel for the petitioners very fairly states that though he disputes the liability of the respondent to receive the amount, however, as he has tendered the amount, he would honour his commitment and re-validate the drafts. The learned Additional Chief Judicial Magistrate, Jagadhari shall return the drafts to the petitioner through his counsel who shall get them re-validated and tender them back in the Court. The respondent may thereafter collect the drafts from the Court after due validation. The drafts shall be collected by the petitioner within 15 days from the receipt of copy of the order and thereafter submitted back within 15 days thereafter. In view of the above, the criminal miscellaneous petition is allowed. Keeping in view the fact that the respondent has agreed to also accept the amount which is in question, further proceedings in complaints No.605 and 606 dated 7.12.2007 (Annexures-P.14 and P.15) and all consequential and subsequent proceedings in pursuance thereof shall stand quashed. January 20, 2009. (S.S. Saron) Judge *hsp*