Criminal Misc. No. M-9472 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-9472 of 2010 Date of Decision: 07.05.2010 1. M/s Triveni Ferrous Infrastructure Pvt. Ltd. through its Managing Director, R-13, Greater Kailash-I, New Delhi, also at W 4/D-3, West End Avenue, Sainik Farm, New Delhi. 2. Sh. O.P. Sagar son of Mr. Lachman Dass, Manager, Triveni Ferrous Infrastructure Pvt. Ltd. resident of H. No. 3573, Block A, Gali No. 9, S G M Nagar, Faridabad. ... Petitioners Versus Smt. Kela Devi widow of Sanwal Singh, resident of village Sihi, Sector 8, Tehsil Ballabgarh, District Faridabad, through her Special Power of Attorney, Gyanender Tewatia, son of Bhajan Singh son of Sh. Sawan Singh, resident of village Sihi, Sector 8, Tehsil Ballabgarh, District Faridabad. ...Respondent 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. 404, dated 17.07.07, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be called as the 'Act' only) (Annexure P4), the summoning order dated 11.08.07, passed by the Additional Chief Judicial Magistrate, Faridabad Criminal Misc. No. M-9472 of 2010 2 (Annexure P5), and all the subsequent proceedings, arising therefrom, has been filed by the petitioners. 2. The petitioners, purchased land, from the complainant, vide registered sale deed, for a total sale consideration of Rs. 3,96,41,875/-. The following cheques, were issued, by the petitioners, in favour of the complainant, for the payment of the sale consideration:- Cheque No. Amount Bank 339294 Rs. 39,64,188/- HDFC Bank 378531 Rs. 59,46,281/- HDFC Bank 378532 Rs. 2,97,31,406/- HDFC Bank 3. However, when Cheque No. 378532, for a sum of Rs. 2,97,31,406/-, was presented, for encashment, the same was dishonoured, on account of insufficient funds, in the account of the petitioners. Thereafter, the petitioners, cut a sorry figure, and requested the complainant, to extend the date, as they were not in a position to honour the same, at the relevant time. Accordingly, the date of the cheque, was extended, from 09.07.06 to 30.10.06, and, then to 06.03.07. It was assured by the accused, that the cheque, would be honoured, after 31.03.07. 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 on account of interest. 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. 378532, in the sum of Rs. 2,97,31,406/-, Criminal Misc. No. M-9472 of 2010 3 was again 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 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 the complainant, 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 cheque back, but the same, was 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. Criminal Misc. No. M-9472 of 2010 4 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 cheque, was not issued, in the discharge of legally enforceable liability, by the petitioners, and, as such, no offence, punishable under Section 138 of the Act, was constituted. He further submitted that in para 3 of the complaint, the complainant/respondent stated that if the cheque bounced the sale deed shall be deemed to be cancelled. He further submitted that the petitioners were under no obligation to pay the amount of the cheque in the circumstances, referred to above. 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 petitioners, were in the discharge of legally enforceable liability or not, is a question of fact, which can be proved, by leading evidence, Criminal Misc. No. M-9472 of 2010 5 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 them. 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 support thereof, clearly constituted the offence, punishable under Section 138 of the Act. The disputed questions 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-9472 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 (SHAM SUNDER) Amodh JUDGE