420 f Criminal Misc NoM29593 of 2006108M1 1 In the HighCourt of Punjaband Haryanaat Chandigarh Date of decisionl 160011 1 1 Criminal Misc NoMe29593 of 2006 IO8MI 115 Mls Him Tehnoforge Ltd and another etitioners Versus 1 f Mls Kusum Ingotsand AlloysLimted 0 IeRespondent 0 I C5 Criminal Misc NoMm33541of 2006 08M1 I Mls Him Tehnoforge Ltdnd another Z o Petitioners Versus Mls Kusum Ingotsand AlloysLimited espondent Z Criminal Misc NoMm34066 of 2006 OSMI C 7 Mls Him Tehnoforge Ltcl and another Z I Petitioners C Versus 1 Mls Kusum Ingotsand AlloysLimited Respondent Criminal Misc Nom33547 of 2006 OSMI Mls Him Tehnoforge Ltd and another Petitioners 1 llersus Mls Kusum Ingotsand AlloysLimited Respondent 1 KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 421 C Criminal Misc Noe29593 of 2006 108M1 2 r 1 1 Criminal Misc NoM34072 of 2006 IO8MI Mls Him Tehnoforge Ltcl and another etitioners Versus Mls Kusum Ingotsand AlloysLimited Respondent Q Criminal Misc NoM34068 of 2006 08M1 0 0 Mls Him TehnoforgeLtd and another Petitioners I C5 Versus I Z Mls Kusum Ingotsand AIIoysLimited Respondent 0 Criminai Misc NoMe34091 of 2006 IO8MI I C3 Mls Him TehnoforgeLtcl and another Z titioners Versus 7 Z Mls Kusum Ingotsand AlloysLjmited Respondent Criminal Misc Noe34199 of 2006 108M1 Mls Him TehnoforgeLtc and another e Petitioners Versus 1 Mls Kusum Ingotsand AIIoysLimited espondent KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 422 9 Criminal Misc NoMm29593 of 2006 08M1 3 mY 1 CORAMl HONBLE MRS JUSTICE SABINA Present Mr Hemant Bassi Advocate for the petitionersl MsAlka Sarin Advocate fortherespondensl 4kIkoIer SABINA J 0 This order will disposeof the above mentioned petitions C4 I as the petitioners have soughtquashingof the complaintsas well as C5 summoning orders in questionand all the subsequentproceedings I arisingtherefrom and the controversyinvolved in all the cases iS Z similar Learned counsel for the petitionershas submitted that I there were business dealingsbetween petitionerNo 1 and the Z respondentThe petitionershad issued 15 chequesamountingto C 56928101 Irl the year 1997 However the said chequeswere dishonourerl Thereafter 13 chequeswere issued bypetitionerNol Z in favour of the respondentand the said cheques were duly 0m encashed by the respondent Dispute remained qua two cheques amounting to 24000001 In this regard a Memorandum of vlOU for shortl Annexure P41 was executed between the partiesand as per the same four post dated cheques amountingto 7 4500001 each were issued by petitionerNol in favour of the and a demand draft of 6000001 was also sued by petitionerNo 1 in favour of the J reSPOndentChequedated 202000 was however returned bythe KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 423 1 Criminal Misc No29593 of 2006 08Ml 4 complainantagainstdemand draft of 449 l l Ol after deducting the commission charges Two chequesdated 252000 and 27 42000 were encashed by the complainant However cheque dated 10 42000 was dishonoured by the bank and the accused immediatelygave the said amount vide demand draft alongwith Interest on account of Iate payment The entire paymentwas duiy t accepted by the complainanespondent Hence now nothing Cl remained due againstthe petitionersand the complaintsin question 0 0 were Iiable to be quashed I C5 Learned counsel for the on the other hand has submittedthat 329281 Ol were still due against Z the petitionersalongwith interest 90Ioper annum The petitioners had violated the terms of the MOU The chequeswh ich had been 1 encashed by the respondentrelated to some other transactions I between the parties In fact the MOU had been executed between Z the partiesqua four complaintsonly whereas eightcomplaintshad m been filed against the petitionersqua dishonour of cheques Evidence had almostbeen concluded dung trial In supportof her Z ll argumentsIearned counsel has placedreliance on Pankaj Mehra and another vs State of Maharashtra and others 200012 SupremeCourt Cases 756 wherein in para 23 it was held as undeo It was next contended that since one of the conditions to constitute the offence of Section 138 of the Nl Act is that P4 chequeshould have been drawn for the discharge a of a Iegaliyenforceable debt or other iiabilityno suchcheque 1 KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 424 1 Criminal Misc NoM29593 of 2006 1OSMI 5 7 can possiblybe conceived in a situation such as this because the creditor would be disabled from IegaIIy enforcingthe debt with the commencement of windingup proceedingsSection 138 of the Nl Act no doubt contemplates onlywhen the chequeIs drawn by a person for the dischargein whole or in part of any debt or other 1 Iiability Explanationto Section 138 says that for the purposes of this Section debt or other Iiabilitymeans a 0 0 Iegallyenforceable debt or Iiability Therefore the first I Iimb of the contention is forceful that for the offence under 4a9 I Section 138 the chequeshould have been drawn for Z a Iegailyenforceable debt or other Iiability But the second Iimb of the contention is tenuous as the Lr debt would not cease to be Iegallyenforceable merely I because some bodyhas filed a petitionfor winding Il C3 up Z Learned counsel has further piacedreliance on Rajneesh r10 Aqqarwal VS Amit JBhalla 200111 SupremeCourt Cases 631 7 wherein in para 7 it was he1das under Z So far as the questionof depositof the money dunng the pendencyof these appealsis concerned we may state that in course of hearingthe partieswanted to settle the matter in Court and it IS In that connection to prove the bona fide the respondent deposited the amount covered under all the three chequesin the 9 Court but the complainantscounsel insisted that if there 1s going to be a settlement then ali the pendingcases 0 between the parties should be settled which waS KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 425 1 Criminal Misc NoM29593 of 2006 08iMl 6 1 howevernotagreedtobytherespondentand therefore the matter could not be settled So far as the crinlal complaintis concerned once the offence is committed any payment made subsequentthereto will not absolve the accused of the Iiabilityof criminal offencethoughItl the matter of awardIng of sentence it W may have some effect on the Court tryingthe oHence l But by no stretch of imaginationa criminal proceeding 0 C0 could be quashedon account of depositof money in the I Court or that an order of quashingof criminal C5 I proceeding wh ich IS othetwise unsustainable in Iaw Z could be sustained because of the depositof money in this Court In this view of the matter the socalled depositof money bythe respondentin this Court is of no I ll C consequence Z Learned counsel has next placed reliance on QO SANanjundeswara VS Varlak Aqrotech IPI Ltd 12002110 SupremeCourt Cases 249 wherein in para 5 was held as Z undeo tl Having examined the rival submissions and on examiningthe assertions made in the complaintand on scruitinising the impugnedjudgmentof the HighCourt we have no hesitation to come to the conclusion that the HighCourt exceeded ltsjurisdictionbyinvokingthe power under Section 482 of the Code of Criminal Procedure and quashing the proceedings so far as accused Smt Veralakshmi Gundu Rao IS concerned The High KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 03 426 LJ Criminal Misc Nom29593 of 2006108M1 7 Court can be justifiedin quashingthe proceedingsonlyif it comes to the conclusion that even the statements taken on face value do not make out any offence Obviously applyingthat standard it cannot be said that no offence has been made out againstSmt Veralakshmi Gundu Rao Il 1 After hearingIearned counsel for the panies am of the opinionthat the presentpetitionsdeserve to be allowed 0 C The facts ofthe presentcase are peculiar Admittedly I there were business dealingsbetween the partiesand 15 cheques C5 I were issued by the petitionersin favour of the complainant Z respondent However the said chequeswere dishonoured The details of the dishonoured chequesand the ones which were issued Q Ill Iieuthereof as depictedin para 50f the petitionareas undeo I Z Old cheque Dated Amount Fresh Dated Amount Cheuqe 10 19747 1619197 356186 392239 05111197 356186 197482019197 224978 392242 13111197 224978 Z 197492319197 280966 576151 26111197 280966 197502519197 269700 576152 04112197 269700 197533019197 359841 576168 22112197 359841 19740 1918197 637809 576169 31112197 637809 197432618197 284263 392234 28110197 284263 19751 2719197 325856 576153 30111197 325856 19752 2919197 355730 576154 30111197 355730 197451619197 300881 392146 15110197 300881 197462219197 365518 392226 22110197 365518 9906912818197 281172 576167 22112197 281172 197412518197 249219 392233 28110197 249219 So far as cheque No19744 dated 109 1997 and chequeNo 019742 dated 301 997 are concerned the 0 KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 427 1 Criminal Misc NoMm29593 of 2006 1O8MI 8 1 1 had not issued chequesin Iieu thereof Para 60f the petitionreads as under That it would be pertinentto mention here that ali the said thirteen chequeswhich were issued bythe petitioner Nol in favour of the respondentin Iieu of the earlier thirteen cheques were encashecl However Slnce no 1 chequewere issued in ileu of cheque Nol 9744 dated 1091997 and 019742 dated 381997 as suchtheir 0 0 status remained the sar Copyof the certificate issued I by the bank certifyingthe clearancelencashment of the C5 I said chequesis annexed herewith as Annexure F ll So far as 13 cheques which were issued in Iieu of the Z earlier chequeswhich had been dishonoured mentioned above the L same were duly encashed by the responder The fact that 13 I chequesissued bythe petitionersin Iieu of earlier chequeshad been Z encashed by the complainantis not specificallyden1ed in replyto C0 para60f the petitionwhich reads as under 7 That para No 6 of the petitionis wrong and hence Z denied The petitionerhas acceptedin this para that Il amount of cheque No19744 dated 109 1997 for 6849691 and 019742 dated 301997 for2 7157121e remalned unpaidand till date the amount towards these chequesremains to be paidand the sameIS outstanding and the matter is pendingbefore JMIC Chandigarh 11 It has only been averred in replyto para 60f the petition that the amount of two cheques dated 101 997 and 301 997 0 KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 428 4 Criminal Misc No29593 of 2006 O8MI 9 1 remained unpaid and till date the amount towards these cheques remains unpaid This shows that initially15 chequeswere issued by the petitionersin favour of the complainantand these were dishonoured However 13 chequesissued by the petitioners were dulyencashed bythe complainant and the disputeremained qua two cheques bearingNo 019744 dated 101997 and 019742 dated 1 301997 MOlAnnexure Pe41was admittedlyexecuted between 0 0 the parties The relevant terms of the MOU read as under I Whereas KIAL and HTL held a meetingon 9 I 2022000 at HTLs office at Chandigarh for compromiselsettlementof dues Both patties have Z 2 agreed for settlement of the outstandingdues for 24000001 HTL will pay to KIAL 24000001 onlyin full I r and final settlement of their claims Z To dischargeits Iiability as stated above 0 HTL agreedto pay a total sum of 24000001 by m Z 27 42000 Irl instalments stattingfrom 28 22000 KIAL Qn has agreed the request on the followingterms and conditions 1 HTL will pay 24000001 in instalments as per enclosed Annexure Il ve f 2822000 to 27 4000 towards full and final settlement of KIALs Account by way of post dated chequesof 18000001 drawn on State Bank of Bikaner and JaipurSector VJ KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 429 6 Criminal Misc of 2006 108M1 10 1p 17 Chandigarhand 6000001 upfront byway of demand draft payableat Mumbai That HTL herebyconfirms that the cheque sl to be issued by HTL to dischargethe aforesaid IIabIlitytowards outstanding settlementwill be honoured by the bankers of HTL on its presentationand that HTL l shall not advIse their bankers to stop the 0 0 paymentof the said cheques any time in I future under any circumstances whatsoever C5 I HTL also undertakes that they shall not Z requestto KIAL not to present the said cheques on the due dates in any l circumstances whatsoever HTL also t closed chequesshown in annexure1 will Z not be withdrawn in any circumstances OO However in case of dishonour of the 7 chequesKIAL will be at Iibertyto continue Z with the Iegalproceedingspendingwith the tl vanous courts of Judiciai Magistrate Ist Class in Chandigarhand windingup petition pendingbefore HP4igh Court at Shimla against HTL and its Managing DirectorlDirectors 3 With the clearance of 18000001 post dated chequesat per Annexure il enclosed hereto KIAL agrees to withdraw4 criminal KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 430 1 Criminal Misc NoMm29593of 2006 108M1 11 1d complaintsfiled by it againstHTL and its ManagingDirector under Section 138 of NegotiableInstruments Act 1881 which are pending in various courts of JMIC at Chandigarhas per Annexure 1 and any other complaint or Iitigationif any pending 1 against HTL Further KIAL agrees to withdraw windingup petitionpendinginthe 0 0 HCourt at ShimIa immediatelyafter I receipt of full settled amount of C9 I 24000001 from HTL Z 4 In the meantime KIAL will not pursue the Iitigations till 27 42000 e The time when l post dated cheques are cleared from the I t bank and entire amount of 24000001a IS Z received by KIAL KIAL agrees to withdraw 0 the criminal complaintsunder Section 138 7 of NegotiableInstruments Act 1881 and Z windingup petitionfiled againstHTL after receiptof entire amount of 7 24000001 IF KIAL does not withdraw all the includingwinding up petitionetc as per para 3 above filed by KIAL itself or throughany of its Managing DirectorIDirectorIAuthorised person against HTL and its ManagingDirectorlDirector or KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 431 4 1r Criminal Misc Nom29593 of 2006 OSMl 12 file any civil or criminal cases againstHL or its Directors HTL will have right to the Court to dismiss all these as withdrawn on the basis of this MOU for which is KIAL does hereby accord its consent 11 1 In pursuance of the MOU the petitioners gave a demand 0 C0 draft of 6000001 dated 2822000 to the complainant Four I cheques bearing N33651 3 dated 202000 336514 dated t I 2532000 336515 dated 10 4 2000 and 336516 dated 27 4 2000 Z amounting to 4500001each were handed over to the complainant 2 Chequedated 202000 and 272000 were duly encashed by the complainantHowever chequedated 10 42000 was dishonoured by I L2 the bank but the petitionersimmediately gave a demand draft of Z 4500001 alongvvithinterest of 56251 on account of Iate payment 00 to the complainant Chequedated 202000 was returned by the V Z complainantto the petitioners as a demand draft of 4491901 after 0m deductingcommission chargeswas handed over to the complainant Thus the entire amount In terms of the MOU was pald by the petitioners to the complainant Annexure P6 is the judgmentdated 14 112000 passed bythe HighCourt of Himachal Pradesh in a windingup petitionfiled bythe complainant The same reads as under The petitionerMls Kusum Ingots and Alloys Ltd has 1 approachedthis Court under Section 433 and 434 of the KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 432 f Criminal MiscIloMm29593 of 2006 108MI 13 r CompaniesAct 1956 seekingthe windingup of the respondentcompany Mls Him TeknoforgeLimited having its registeredoffice at Sai Road Baddi District Solan HP Admittedlythe petitioner company has been supplying1ngotsto the respondentcompany from time to time Accordingto the petitionercompany a sum of rs m 90647401 towards principaland interest calculated at the rate of 24Io per annum was due from the respondent 0 0 companyas on 301 999 Cheuqes issued by the respondentcompany in favour of the petitionercompany t5 I were dishonoured and on the basis of such dishonoured cheques proceedingshave been initiated by the Z petitioner company against the respondent company under Section 138 of the NegotiableInstruments Act I which are stated to be pendingat ChandigarhSincethe Z respondentcompany failed to pay the amount due insplte 00 of statutorynotices havingbeen issued the present 7 petitionhas been filed Z The respondentwhile resistingthe petition ll denied its Iiability The correctness of the amount due was also denied Interest as claimed by the petitioner was also denIed and it was averred that claim of the petitioner was beyondtime Duringthe pendencyof the proceedingsthe partiesarrived at a compromse on 252 2000 on which e date a memorandum of came to be executed between the parties A copy of such J KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 433 Criminal Misc Nolllm29593of 2006 0SMI memorandum has been placed on record of the present case As per this memorandum of after the settlement of the accounts between the parties the respondent company agreedto pay a sum of 24000001 in all to the petitioner company in full and final 1 settlement of their claim Such amount of 24000001 was agreed to be paid In instalments by post dated 0 0 chequesand demand draft as underl 1 Demand Draft dated 28 22000 6000001 t5 I 2 ChequeN33651 3 dated 202000 4500001 Z 3 ChequeNo 336514 dated 25000 1500001 4 ChequeN336515 dated 102000 4500001 r 5 ChequeN336516 dated 27 42000 4500001 I Admittedlythe whole of the amount of Z 24000001 has been paid by the respondentcompany 10 and received by the petitionercompany alongwith the 7 Z interest amount of 56251 towards the Iate payment tl The contention raised on behaif of the petitionercompany is that Since the respondentcompany failed to dischargeits Iiabilityunder the memorandum of in accordance with the agreed terms by the due date that is 27 42000 the petitioenrcompany was entitled to enforce its entire initial claim againstthe respondentcompany VVithout goingfurther into the merits of the J KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 434 1 r Criminal Misc No29593 of 2006 1OSMI 15 v case suffice to say at this stagethat the questionas to what is the effect of the memorandum of dated 252 2000 arrived at between the parties consequent upon the failure of the respondentto discharge its Iiabilityunder such memorandum of bythe due date raises a disputedquestion of fact which cannot be gone into by this court since it involves a detailed enquiry 0 40 It is well established principleof iaw that no I windingup order is to be passedin case the respondent t5 I IS able to make out a bonafide disputewith regardto the claim set up bythe petitioenr Z In view of a bonafide disputehavingbeen r raised by the respondentwith regardto the effect of the memorandum of arrived at between the C3 Z parties on 25 22000 Orl the failure of the respondent rf1 copanyto dischargeits Iiabilityunder such memorandum W2 of within the stipulatedtime as fixed Z therein am satisfied that no windingup order in the presentcase can be passed Resultantlythe present petitionIS rejected The petitionercompany shall be at Iibertyto raise the questioninvolved In appropriateproceedingsbefore the appropriate forum subjectto all justexceptions ll Thus the amount had been paid by the petitionersin 1 terms of the MOU As per the MOU the complainanthad agreedto withdraw l KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 435 7 C Criminal Misc Noe29593 of 2006108M1 16 P four criminalcomplaintsand any other complaintor Iitigationif any pendingbetween the parties It is onlyone of the cheques as per the MOU which was dishonoured due to some reasons and immediatelythe petitionerspaid the amount in questionby way of draftalongwIth interest on account of Iate payment In the facts and circumstances of the present case it 1 transpiresthat 15 chequesissued by the petitionersin favour of the tr compla inant were dishonoured but thereafter 13 chequeswere re 0 0 issued qua some amount and dispute remained only qua two I CD cheques Thiiteen chequeswere dulyencashed by the complainant respondent In Vievv of the MOU executed between the parties the Z petitionershave paid 24000001 to the complainantalongwith interest of 56251 qua one chequedue to delayedpayment The 1 I Judgments relied upon by Iearned counsel for the respondentfail to advancethe case ofthe respondentastheseare based on different Z facts 00 In the present case the windingup petitionfiled by the m0 Z complainanthas been dismissed n view of the MOU executed tl between the parties Paymentsqua the cheques Ill question have been made by the petitionersIn view of compromiseeffected between the partiesand the said compromisewas dulyreduced into writingas MOU The said MOU had dulybeen executed between the pattieswith a view to put an end to their IitigationThe petitioners have also paIdthe amountin terms of MOU to buypeace In these 1 circumstances if the criminal proceedings are allowed to continue the same would be nothingbut an abuse of process of Iaw The SJ KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 436 C e Criminal Misc NoM29593 of 2006 1OSMI 17 e ends of justicerequire that the criminal proceedingspendingagainst the petitionersbe quashed Accordinglythe present petitionsare allowed The complaints as well as the summoning orders in questionand all the subsequentproceedingsarisingtherefrom are quashed l L JUDGE 0 August 2011 0 anita I 1 Z IO I Z oo vmo Z Qm KUMAR SURESH SHAM LAL 2012.06.25 16: 36 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document