Lafarge Aggregates & Concrete India ... vs Sukarsh Azad & Anr

3. Admittedly, the accused no. 2 in the complaint had issued the cheque in favour of the appellant for a sum of Rs.2,50,000/-, which was dishonoured as there was instruction of 'stop payment' by the Managing Director. This led to the lodgment of a complaint at the instance of the petitioner in which proceedings started.

5. The High Court allowed the petition filed by the respondents herein for quashing of the proceeding but the said order was passed ex-parte. The appellant, therefore, filed an application for recall of the said order but the High Court dismissed the application for recall on the ground that the averments in the complaint did not meet the test laid down by this Court in the matter of N.K. Wahi Vs. Shekhar Singh and others, 2007 (9) SCC 481. It is this order which is under challenge in this special leave petition at the instance of the appellant-complainant.

6. We have heard counsel for the appellant as also the respondents and taking an overall view of the matter, we are of the opinion that this appeal is not fit to be entertained against rejection of the application for recall of the order by which the proceedings against the respondents herein had been quashed by the High Court. Nevertheless, we are conscious of the fact that the appellant should not be deprived of the amount for which the respondents had stopped payment which led to the lodgment of the complaint. We, therefore, suggested to the respondents that they should honour the cheque which had been issued by them by making the payment along with the interest, which would be in the nature of compensation for stop payment instructions at their instance and that amount by way of lump sum amount including interest and compensation would be around Rs.5 lakhs.

12. Besides this, the appellant also ought to take note of the fact that these appeals are not directed against the order by which the complaint had been quashed insofar as these two respondents are concerned but it is directed against the order of the High Court by which it refused to recall the order by which the complaint had been quashed. The appellant had failed to offer any sufficient cause for their non-appearance on the date when the complaint had been quashed and if we were to be driven to merely taking a technical view of the matter, these appeals could have been rejected even on the ground of non-sufficiency of material furnished by the appellant in the High Court against refusal to recall the order in which case the petitioner cannot realise even the amount towards the cheque issued in their favour. But considering the fact that the appellant would be deprived of their due amount of Rs.2,50,000/-, we delved into the factual details and considered just and appropriate to direct the respondents to make the payment for the sake of substantial justice to the complainant-appellant as also in view of the analogous appeal, arising out of SLP(Crl)No. 1145/ 2012 directed against the order dated 10th September, 2010 passed in Crl.Misc.No.20203 of 2010 whereby the High Court had allowed the petition filed by the respondents herein under Section 482 of the Code of Criminal Procedure, 1973 and was pleased to quash the proceedings against them. It was in this context that we thought it appropriate to direct the respondents to make the payment towards the cheque in which stop payment instructions had been issued. Besides this, the appeal is time barred by 359 days for which also we see no justification. On the one hand, the appellant has sought to impress upon this Court to take a technical view of the matter by urging that the respondents had not made the payment during the 15 days notice period, even though that had been offered at a later stage, but ignoring his own conduct he expects this Court to condone the huge delay of 359 days in filing the appeal, which is fit to be rejected outright.

11. However, in the interest of equity, justice and fairplay, we deem it appropriate to direct the respondents to make the payment to the appellant by issuing a demand draft in their favour for a sum of Rs.5 lakhs, which would be treated as an overall amount including interest and compensation towards the cheque for which stop payment instructions had been issued. If the same is not acceptable to the appellant, it is their choice but that would not allow them to prosecute the respondents herein in pursuance to the complaint which they have lodged implicating these two respondents.

13. Hence, appeal arising out SLP(Crl) No. 1327 of 2011 is dismissed on merit and appeal arising out of SLP(Crl) No. 1145 of 2012 is dismissed on the ground of delay as also on merits subject to the direction of payment to the appellant by the respondents.