Crl. Misc. No. M-53597 of 2007 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-53597 of 2007 (O&M) Date of Decision: 06.9.2011. M/s Triveni Infrastructure Development ........Petitioners Company and others Vs. Dharambir Singh ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Akshay Bhan, Advocate for the petitioners. None for the respondent. ..... SABINA, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) for quashing of the complaint under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short), summoning order dated 03.11.2006 and order dated 26.9.2007. Learned counsel for the petitioners has submitted that the proceedings, under Section 138 of the Act initiated against the petitioners, were liable to be quashed as the cheque amount had been paid to the complainant in civil proceedings pending between the parties. None has appeared on behalf of the respondent despite service. After hearing the learned counsel for the petitioners, I Crl. Misc. No. M-53597 of 2007 (O&M) -2 - am of the opinion that the instant petition deserves to be allowed. The case of the complainant in brief is that on 20.2.2006, a sale deed qua the land owned by him, was executed in favour of the accused. The accused issued two cheques in favour of the complainant amounting to ` 1,00,000/- and ` 2,69,83,500/-. The cheque amounting to ` 1,00,000/- dated 22.2.2006 was duly encashed by the complainant. However, when the cheque in question dated 10.5.2006 amounting to ` 2,69,83,500/- was presented for encashment, the same was dishonoured by the bank vide the report dated 10.5.2006 “funds insufficient and could not be encashed and present again”. Hence, the complaint in question was filed by the complainant under Section 138 of the Act. Complainant also filed a suit for declaration that the sale deed dated 20.2.2006 be cancelled. The said suit was filed on 15.6.2006. Vide order dated 31.8.2006 (Annexure P-5), an application moved by the complainant under order 39 Rule 1 and 2 of the Civil Procedure Code was dismissed as the defendant in the written statement had averred that he was ready and willing to make the payment of the outstanding sale consideration. Annexure P-7 dated 22.8.2007 is the statement made by the complainant before the Civil Judge (Senior Division) and the same reads as under:- “Stated that I have received Banker's cheque bearing No. 050589 dated 9.6.2007 amounting to Rs. 3,04,91,355/- drawn on HDFC Bank, Greater Kailash, New Delhi, without my legal rights pending Crl. Misc. No. M-53597 of 2007 (O&M) -3 - in the present suit as well as the appeal pending in the court of Smt. Sneh Prashar, ADJ, Faridabad, as well as in the complaint u/s 138 NI Act pending in the court of CJM, Faridabad against the defendant and subject to all legal objections available under the law. Plaintiff shall continue legal proceedings against the defendants.” Thus, in the civil proceedings, the complainant had received the cheque amount in question along with interest. The said amount was paid by the accused in view of the prayer made by the complainant in an appeal filed by him against the order dated 31.8.2006 whereby the application for ad interim injunction was declined by the trial court. Para Nos. 15 to 17 of the present petition read as under:- “15. That in the prayer clause of the Civil Miscellaneous Appeal no. 23 of 2006, the respondent made an alternative prayer for deposit of the cheque amount alongwith interest at the rate of 12% per annum. The prayer clause of the civil miscellaneous appeal is reproduced as under:- For the reasons stated above, it is therefore prayed that the appeal may kindly be accepted. The order under appeal may kindly be set aside and the application for stay may kindly be accepted and defendants be restrained from creating third party interest in the suit land. In the alternative, the Crl. Misc. No. M-53597 of 2007 (O&M) -4 - defendants may also be directed to pay the balance sale consideration alongwith interest at 12% per annum from the date of cheque till payment. This is without prejudice to the legal rights available to the plaintiff/appellant under the law of the land. 16. That in terms of the prayer made by the respondent in the appeal, the petitioner no.1 has deposited the sum of Rs. 2,69,83,500/- being the cheque amount as well as interest of Rs. 35,07,755/- on account of interest at the rate of 12% per annum Civil Judge, Sr. Division, Faridabad. 17. That respondent has in fact on 22.08.2007, withdrawn and accepted the payment of the cheque amount and interest, total amounting to Rs. 3,04,91,255/-. Copy of the statement dated 22.08.2007 made by the respondent before the Civil court is annexed herewith as Annexure P-7.” Reply filed by the respondent to the said paragraphs reads as under:- “15 & 16 & 17- That para No. 15 & 16 & 17 of the petition are a matter of record and not disputed, however it is submitted that the praying for the recovery of the balance sale consideration along with interest and the payment thereof by the petitioners in appeal does not absolve the petitioners from the criminal liability and from the offence having been committed under the provisions of the Negotiable Crl. Misc. No. M-53597 of 2007 (O&M) -5 - Instrument Act, which are different and independent of the civil liability. The amount has been received without prejudicing to the legal rights of the respondent available to him under the law and has got no bearing upon the remedies civil as well as criminal available to the respondent against the petitioners for the offences committed by them.” Thus, the receipt of the cheque amount along with interest has been duly admitted by the respondent in his written statement. The accused have not been served so far in the criminal proceedings. Since the cheque amount in question has already been paid to the complainant along with interest in the civil proceedings, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, this petition is allowed. The complaint (Annexure P-3) and all subsequent proceedings, arising therefrom, including the summoning order dated 03.11.2006 (Annexure P-8) and order dated 26.9.2007 (Annexure P-9), are quashed. (SABINA) JUDGE September 06, 2011 Gurpreet