Criminal Misc. No. 60399-M of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 60399-M of 2004 Date of decision:- 28.7.2008 1) M/s Tandon Agro Mills Ltd. and others ...Petitioners Versus State of Punjab and another ...Respondents 2) Criminal Misc. No .M-52528 of 2007 Sh. Krishan Kumar Tandon ...Petitioner Versus State of Punjab and another ...Respondents 3) Criminal Misc. No. M-52535 of 2007 Sh. Krishan Kumar Tandon ...Petitioner Versus State of Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Govind Goel, Advocate for the petitioners. Mr. R.S. Rawat, AAG, Punjab. Mr. Vikas Mohan Gupta, Advocate for respondent no.2-complainant. RAJESH BINDAL J. This order will dispose of three petitions bearing Criminal Misc. Nos. 60399-M of 2004, M-52528 of 2007 and M-52535 of 2007. Criminal Misc. No. 60399-M of 2004 2 The facts have been taken from Criminal Misc. No. 60399-M of 2004. The prayer in the petition is for quashing of complaint No.2 dated 16.1.2002 filed by respondent no. 2 against the petitioners under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') and summoning order dated 21.8.2002. The complaint came to be recorded on account of dishonour of cheque no. 525106 dated 23.6.2001 issued by petitioner no.1 to respondent no.2 for sum of Rs. 50,000/- for part discharge of his liability. The cheque on presentation was returned back uncleared with the remarks ‘stop payment’ on 13.11.2001. On failure of the petitioners to comply with the terms of the notice issued, the complaint was filed against the petitioners. After recording preliminary evidence, the learned Magistrate First Class, Sunam, vide order dated 21.8.2002 summoned the petitioners to face trial for commission of offence under Section 138 of the Act. Learned counsel for the petitioners submitted that the intention of the petitioner No.1 in the present case was not mala fide as on the very first date of hearing after receipt of summons of the court he had tendered the amount, meaning thereby that he admitted that though for the reasons beyond his control he defaulted in payment of the amount, his bona fide was clear when immediately on appearance in Court he tendered the amount of cheque by way of demand draft, still respondent No.2 is bent upon to prosecute the petitioners as he does not want the money but a pound of flesh. He submitted that even today the petitioners are ready and willing to pay the amount of cheque along with interest up to date and also whatever punishment this court imposes on the petitioners for the alleged offence committed by them but the punishment which is imposed should be commensurate to the guilt of the petitioners, keeping in view the fact that on the very first date of hearing in the Court the amount of the dishonoured cheque was tendered. Learned counsel for respondent no.2-complainant submitted that the petitioners should not be heard for quashing of this complaint at this stage. An application for discharge was dismissed by the learned Magistrate which order was never challenged by the petitioners. He further submitted Criminal Misc. No. 60399-M of 2004 3 that infact respondent no.2-complainant had filed four complaints for dishonour of four different cheques of Rs. 50,000/- each. Out of four, three petitions are pending in this court, in which quashing of complaint is prayed for whereas in the fourth petition the trial Court had convicted the petitioners and awarded imprisonment for a period of one year, however, the appeal against that was pending. He further submitted that the amount of cheque was not tendered by the petitioners on the very first date of hearing. In fact they had appeared before the Court on 14.11.2002 but the amount was tendered on 29.11.2002. He further submitted that the trial in the present case is nearing conclusion, at this stage this Court should not exercise extraordinary power under Section 482 Cr.P.C. for quashing the compliant. He further submitted that respondent No.2 is in fact to recover a sum of Rs. 32 lakh from the petitioners. Having heard learned counsel for the parties, I find merit in the submissions made by the learned counsel for the petitioners. The trial of an offence is to take place in case the guilt is not admitted by the accused. In the present case as is submitted by learned counsel for the petitioners the mere fact that they had tendered the amount of cheque in the court at the very early opportunity shows that the commission of offence was admitted. Nothing remained to be proved after holding protracted trial. It was only the question of final view to be taken by the Court on the facts on record seeing the bona fides of the petitioners that they could not repay the amount in time because of financial hardship. Further the bona fide of the petitioners is established from fact that even in this Court, an offer was made to pay the amount of cheque alongwith up to date interest to respondent no.2-complainant but the same was not acceptable. Keeping in view the totality of circumstances and the object for which Section 138 was added to the Act and where in the present case the petitioners had tendered the amount of the cheque at the earliest opportunity, I deem it appropriate to accept the petition by taking a final view in the matter at this stage by directing the petitioners to pay the amount of cheque to respondent no.2-complainant alongwith interest at the rate of 12% per annum from the date of cheque till the date of payment within 30 days from the date of receipt of copy of this order. It is further directed that Criminal Misc. No. 60399-M of 2004 4 the petitioners shall also be liable to pay a fine of Rs. 5,000/- in each complaint within the aforesaid period. The fine deposited with the court shall be released to the complainant. On compliance of the above terms, the proceedings initiated against the petitioners shall stand concluded. The petitions are disposed of, accordingly. However, it is made clear that in case of failure, the petitions shall be deemed to have been dismissed without any reference to the Court. July 28, 2008 (RAJESH BINDAL) ritu-II JUDGE