Criminal Misc.-M No.19245 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: December 02 , 2008 VCI Hospitality Ltd. & others .....Petitioners VERSUS Hyatt Resorts Pvt.Limited, Choda Complex, Central Mills, Old Railway Road, Jalandhar. ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Atul V.Sood, Advocate, for the petitioners. Mr.Ashwani Talwar, Advocate, for the respondent. **** RANJIT SINGH, J. The petitioners, who stand summoned to face prosecution under Section 138 of the Negotiable Instrument Act seek quashing of criminal complaint as well as the summoning order. Petitioner No.1 is a company incorporated under the Companies Act. Earlier the petitioner-company was named as Vacation Club International Limited ,which is changed to VCI Hospitality Ltd. Petitioner No.2 is Managing Director, whereas petitioner No.3 is the Criminal Misc.-M No.19245 of 2008 : 2 : salaried employee. Petitioner No.4 is stated to be non-working Director. It is averred that petitioner No.1 company entered into a Marketing Agreement with respondent on 28.12.2005 for marketing club membership of the respondent. As per Clause 11 of the agreement, the revenue sharing from the enrolment of the club membership was to be shared in the ratio of 70% in favour of respondent and 30% in favour of petitioner No.1. This agreement was amended on 24.7.2006 changing the revenue sharing clause and now agreed to pay a minimum sum of Rs.25 lacs per month to the respondent. It is alleged that pursuant to this amending clause, petitioner issued cheques of Rs.25 lacs each as a security to the respondent. Subsequently, however, the respondent was again requested to revert back to the original revenue sharing modal and to do away with the minimum guarantee. The petitioner agreed to this request and asked the respondent to return the post-dated cheques. On 4.4.2007, it was again resolved to resort to revenue sharing of 75% and 25% and the minimum payment of Rs.25 lacs per month. In this background, it is stated that the respondent did not return the post-dated cheques as agreed between the parties and had presented one cheque dated 1.9.2007 which was dishonoured on account of stop payment. When the legal notice was served upon the petitioners, they contested the same and submitted reply, but still the respondent filed the complaint leading to summoning of the petitioners. The quashing of the summoning order and the complaint is sought on the ground that the respondent has mis-used the process of court by not Criminal Misc.-M No.19245 of 2008 : 3 : disclosing the contents of the notice and the reply which was given by the petitioners. It is further stated that the respondent had also not mentioned the agreement, referred to above, in the complaint. It is urged that had he done so, the summoning would not have followed. Plea further is that it is not a liability which the petitioners owed to the respondent and the cheque, as per the agreement, was meant to be returned. This factual position, however, is disputed by the counsel for the respondent, who submits that the petitioners have so far not appeared before the court and have approached this court for quashing of the complaint and the summoning order. He would also contend that the cheque in question is not the one which relates to the agreement referred to by the counsel for the petitioners. There was heated debate on this factual aspect whether this cheque is the one which was issued in terms of the agreement and was required to be returned or not. It is also not clear whether this cheque was meant to discharge any liability, though the counsel for the petitioners had made strenuous efforts to show that this was only meant to be returned. The factual aspect of the cheque having been issued in terms of the agreement and that it was required to be returned would obviously have to be shown and proved before the court. On the basis of the material and the affidavit attached with the petition, it is not possible to take a view on this factual aspect either way. It will be a matter of evidence and proof which is more appropriately required to be proved by way of evidence. It has consistently been held by the various courts that while exercising jurisdiction under Section 482 Cr.P.C., it is not appropriate to quash Criminal Misc.-M No.19245 of 2008 : 4 : the proceedings on the basis of affidavit and case is required to be established before the trial court. The factual position in regard to the role played by the petitioners would have to be proved by leading cogent evidence before the Trial Court. On the basis of affidavit, it will not be appropriate to hold one way or the other. The petitioners would get opportunity to raise all the defences that are available to them. It would be for the Trial Court to see if the complainant succeed in proving the allegations made in the complaint or whether the petitioners are able to establish their innocence. This Court can not assume the role of Trial Court to say that the allegations made against the petitioners, on the basis of material, would not ultimately stand proved. That will be the role of Trial Court. It has been so observed by the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Awadh Kishore Gupta and others, 2004 (1) RCR (Criminal) 233. Accordingly, it is not a fit case for exercise of jurisdiction under Section 482 Cr.P.C. The petition is accordingly dismissed. December 02, 2008 ( RANJIT SINGH ) ramesh JUDGE