CRM No. 42784-M of 2007 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CRM No. 42784-M of 2007 (O&M) Date of decision: 23.04.2009 Surender Kumar ...Petitioner Versus Jagdish Chand ...Respondent CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Dr. Surya Parkash Garg, Advocate, for the petitioner. Mr. Rajiv Sharma, Advocate, for the respondent. Rajan Gupta, J. The petitioner has preferred this petition for quashing of the impugned complaint (Annexure P-1) under Section 138/142 of the Negotiable Instrument read with Section 420 IPC and all consequential proceedings arising therefrom, on the ground that allegations in the same are false and malicious. The complaint was instituted by respondent Jagdish Chand alleging that cheque bearing No.132285 dated 19th June, 2006 for Rs.18.00 lacs drawn on Gurgaon Gramin Bank, Faridabad, was issued by the accused/petitioner in favour of the respondent with the assurance that the same would be encashed on presentation. The said cheque was presented by the respondent through his banker Punjab National Bank, Hodal, but the same was returned by the Gurgaon Gramin Bank, Faridabad vide memo dated 1st July, 2006 with the remarks that funds were insufficient in the account and CRM No. 42784-M of 2007 2 signatures did not tally. Consequently, legal notice, as envisaged in Section 138 of the Negotiable Instrument Act, was issued to the petitioner and later the complaint was instituted. The petitioner has been summoned to face trial by Judicial Magistrate 1st Class, Palwal in the said proceedings. Learned counsel for the petitioner at the stage of issuance of notice of motion submitted that the entire amount of the cheque i.e. Rs.18.00 lacs had been paid to the complainant. This court thus issued notice of motion and stayed further proceedings before the trial court. However, on appearance, the respondent seriously disputed the claim of the petitioner and submitted that the affidavit of the respondent annexed with the petition as Annexure P-3 to the effect that amount of Rs.18.00 lacs had been received by the respondent, had been fabricated. Learned counsel for the respondent has totally denied that any amount, whatsoever, in lieu of the cheque issued by the petitioner, had been paid to the respondent. Faced with this situation, counsel for the petitioner has changed his stand and submitted that he is not liable to pay the amount in lieu of the cheque as the same was given only as a security and thus offence under Section 138 of the Negotiable Instrument Act is not made out. I have heard learned counsel for the parties. At the time of issuing notice of motion, following order was passed by this court:- CRM No. 42784-M of 2007 3 “Heard. The petitioner has been summoned to face trial under Section 138 of the Negotiable Instrument Act by Judicial Magistrate Ist Class, Palwal by order dated 10th August, 2006. The learned counsel for the petitioner contends that the entire amount, that is, Rs.18.00 lacs was paid to the complainant Jagdish Chand and Jagdish Chand had given an affidavit (Annexure P-3) in that respect to the petitioner, notwithstanding the petitioner filed the complaint. Notice of motion for 27th November, 2007. Further proceedings before the trial Court are stayed.” It is thus evident that this court has issued notice of motion only on the basis of statement made before this court to the effect that entire amount of Rs.18.00 lacs had been paid. However, now the petitioner has raised the plea that he is not liable to pay the said amount. It appears that the petitioner has not approached the court with clean hands, yet I have thought it fit to deal with the plea now raised by counsel for the petitioner. It is evident that entire dispute between the petitioner and respondent is based on a sale-deed according to which the petitioner had purchased some agricultural land from the respondent vide sale-deed dated 13th October, 2005 for a total sale consideration of Rs.39.00 lacs. While an amount of Rs.21.00 lacs was paid in cash, for rest of the amount (Rs.18.00 lacs), the cheque in question was issued. Learned counsel for the respondent has pointed out that the said cheque CRM No. 42784-M of 2007 4 was the actual sale consideration and thus by no stretch of imagination, the same can be said to be in the nature of security. I find force in the contention of learned counsel for the respondent. Even from the averments made in the petition filed by the accused/petitioner, it is clear that in lieu of the sale of land, Rs.21.00 lacs were given in cash and balance consideration of Rs.18.00 lacs was given by way of cheque No.132285 dated 19th June, 2006. Thus, it is clear that the cheque in question cannot be said to have been issued as a measure of security. Learned counsel for the petitioner has relied upon judgments reported as M.S. Narayana Menon @ Mani vs. State of Kerala & another, 2006 A.I.R. (SC) 3366, Shanku Concretes Pvt. Ltd. and others vs. State of Gujarat and another, 2000 (3) R.C.R. (Criminal) 258 and Lalal Prasad vs. State of Jharkhand & Ors., 2005 (1) Criminal Court Cases 358 (Jharkhand) in support of his contention that in case the cheque is issued as a security, no offence under Section 138 of the Negotiable Instrument Act is made out. However, in my considered view, the said judgments are not applicable to the facts of the present case as according to his own averments made in the petition, the petitioner had purchased some land for a total consideration of Rs.39.00 lacs from the respondent vide sale-deed dated 13th October, 2005, out of which Rs.21.00 lacs were paid to the respondent in cash and for the balance amount of Rs.18.00 lacs, the cheque in question was issued. Thus, it is evident that the cheque in question cannot be termed as CRM No. 42784-M of 2007 5 security. The judgments relied upon by the learned counsel, cannot help the case of the petitioner. This apart, at the time of issuance of notice of motion on August 16, 2007, a statement was made before this court that entire amount of Rs.18.00 lacs had been paid and an affidavit in this regard was placed on record as Annexure P-3. Due to this reason, this court was pleased to stay the proceedings before the trial court on 16.8.2007. However, when the respondent appeared and pointed out that the said affidavit, Annexure P-3 was fabricated, the petitioner took a turn around and raised the plea that he was not liable to pay Rs.18.00 lacs. The conduct of the petitioner is, therefore, clearly contumacious. I thus find no merit in this petition. The same is hereby dismissed. (RAJAN GUPTA) JUDGE April 23, 2009 'rajpal'