IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRIMINAL MISC. No. 3541-M of 2008 DATE OF DECISION : JANUARY 11, 2010 NEW RAMA SEED CORPORATION & ANR. ....... PETITIONER(S) VERSUS OPINDER SINGH & ANR. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. MS Bedi, Sr. Advocate, with Ms. Gauri Bedi, Advocate, for the petitioner(s). Mr. Arun Abrol, Advocate, for respondent No.1. Mr. AS Brar, Sr. DAG, Punjab. AJAI LAMBA, J. (Oral) This petition under Section 482 of the Code of Criminal Procedure, has been filed for quashing of criminal complaint dated 14.3.2002 titled 'Opinder Singh v. New Rama Seed Corporation and others' (Annexure P-1) and order of summoning dated 8.7.2002 (Annexure P-2), whereby the petitioners have been summoned to stand trial for commission of offence under Section 138, Negotiable Instruments Act, 1881 (for short 'the Act'). Learned counsel for the petitioners contends that on dishonour of 4 cheques, each for Rs.1 lac, criminal complaint (Annexure P-1) was lodged. On considering the material placed before the Magistrate, the CRIMINAL MISC. No. 3541-M of 2008 2 petitioners were summoned to stand trial vide order (Annexure P-2). Learned counsel for the petitioners has pointed out that subsequently, after the petitioners had put in appearance before the Judicial Magistrate Ist Class, Gurdaspur and there was likelihood of compromise, the Magistrate referred the matter to the Lok Adalat on 12.8.2005. On 20.8.2005, in the proceedings before the Lok Adalat, petitioner No.2 made the following statement :- “Opinder Singh Vs. Rama Seed Statement of Sh. Narinder Kumar Vig, accused with counsel. Stated that I am prepared to give Rs.4 lacs to the complainant payable to him. Out of this money, a draft of Rs.50,000/- vide draft No.999992/16 dated 19.08.2005 HDFC Bank has been handed over to the complainant. The balance amount shall be paid in the installments of Rs.1 lac per month. The first installment of Rs.1 lac shall be paid on 20.09.2005. The second installment of Rs.1 lac will be paid on 20.10.2005. The third installment of Rs.1 lac will be paid on 20.11.2005 and the final installment of Rs.50,000/- will be paid on 20.12.2005. In case there is any delay or default while paying the installments, my previous paid amount can be forfeited. The complainant can initiated any kind of proceedings against me. Sd/- Presiding Officer, Lok Adalat, 20.8.05 RO & AC Sd/- Narinder Kumar” Learned counsel for the petitioners has contended that a sum of Rs.50,000/- was paid to the complainant before the Lok Adalat. The CRIMINAL MISC. No. 3541-M of 2008 3 balance amount was required to be paid in instalments of Rs.1 lac each per month. The first instalment of Rs.1 lac was to be paid on 20.9.2005, the second on 20.10.2005 and the third on 20.11.2005. The final instalment of Rs.50,000/- was to be paid on 20.12.2005. It has been brought out that the petitioners paid Rs.80,000/- on 14.9.2005 and Rs.20,000/- on 29.9.2005. Thus, Rs.20,000/- was paid after the scheduled and agreed date i.e. 29.9.2005. Be that as it may, the respondent-complainant accepted the payment although it was beyond the date fixed and was delayed. The petitioners paid Rs.30,000/- on 20.10.2005. The petitioners further issued two cheques for Rs.35,000/- each, both dated 27.10.2005. One of these cheques for Rs.35,000/- was dishonoured, where for the respondent issued a notice under Section 138 of the Act. The respondent filed a separate complaint in that regard. A compromise was effected and even that sum has been paid by the petitioners to the respondent, whereupon the respondent withdrew the complaint. On 11.12.2006, the petitioners paid Rs.1,20,000/- and Rs.15,000/- vide two bank drafts, which were also accepted by the respondent although clearly the payment was beyond the schedule given in the statement of petitioner No.2, extracted above. Be that as it may, it is the conceded position that only a sum of Rs.15,000/- remains to be paid to the respondent. Learned counsel for the respondent admits that the respondent has been accepting payments even though there was delay. Learned counsel for the respondent, however, states that at this juncture, CRIMINAL MISC. No. 3541-M of 2008 4 the respondent would like to enforce the condition of forfeiture and forfeit the entire earlier amount. Learned counsel for the petitioners has pointed out that the respondent even instituted a civil suit for recovery of Rs.4,70,500/- along with interest at the rate of 18% per annum against the petitioners in regard to the cheque amounts. The court of Additional Civil Judge (Senior Division), Gurdaspur, while dealing with Civil Suit No.428 of 2004 (Opinder Singh v. New Rama Seed Corporation and others), vide judgment and decree dated 7.11.2009, has adjudicated the matter and decreed the suit only to the extent of Rs.15,000/- along with interest at the rate of 6% per annum. I have considered the issue. It is the admitted position by the learned counsel for the respondent that the respondent accepted the payment even though it was delayed and beyond the schedule provided in the statement of petitioner No.2, recorded before the Lok Adalat. It is further the admitted position that only Rs.15,000/- remains to be paid to the respondent out of the cheque amounts. Despite such being the circumstances, the respondent instituted a suit, details whereof have been given hereinabove. The basis of the suit is statement of petitioner No.2 dated 20.8.2005, extracted above. The civil court, having adjudicated the issue, has granted the following relief to the respondent, vide judgment and decree dated 7.11.2009, certified copy whereof has been retained on the record:- “11. In view of my findings on the above issues, present suit stands decreed with costs for a sum of Rs.15,000/- out of principal amount of Rs.4 lakh along with interest at the rate CRIMINAL MISC. No. 3541-M of 2008 5 of 6% per annum from the respective dates of cheques till the filing of present suit and future and pendente lite interest at the rate of 6% per annum from the date of filing of present suit till the payment of Rs.3,85,000/- by the defendant. Plaintiff is also entitled to pendente lite and future interest at the rate 6% per annum on the sum of Rs.15,000/-. Decree Sheet be prepared. File be consigned to Record Room.” Considering the facts collectively, it transpires that the petitioners paid Rs.1,30,000/-, as per schedule. Out of the total cheque amounts of Rs.4 lacs, Rs.2,55,000/- were paid beyond the scheduled period provided in statement of petitioner No.2 dated 20.8.2005. The respondent, however, accepted the sums repeatedly, without any objection. When only a sum of Rs.15,000/- remains to be paid, the respondent is trying to invoke the penalty clause so as to forfeit the entire amount paid by the petitioners. In my considered opinion, the respondent cannot be allowed to take benefit of the clause on his whims. The respondent has repeatedly accepted the payments from the petitioners although the payments were made late. In fact, majority of the amount was paid late and accepted by respondent No.2. The respondent carried the issue to the civil court also on the basis of statement of petitioner No.2 dated 20.8.2005 made before the Lok Adalat. Vide judgment and decree dated 7.11.2009, the respondent has been found to be entitled to payment of Rs.15,000/- only along with future interest at the rate of 6% per annum. In this view of the matter, the petition is allowed. Criminal complaint dated 14.3.2002 titled 'Opinder Singh v. New Rama Seed Corporation and others' (Annexure P-1) and order of summoning dated CRIMINAL MISC. No. 3541-M of 2008 6 8.7.2002 (Annexure P-2), along with all subsequent proceedings, are quashed. However, the petitioners would be bound by the judgment and decree passed by the civil court, relevant portion whereof has been extracted above. January 11, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?