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2001 DIGILAW 1016 (PNJ)

Kumar Rubber Industries Kapurthala v. Sohan Lal

2001-09-14

K.S.KUMARAN

body2001
Judgment , J. 1. 1st respondent - Sohan Lal Viz lodged a complaint under Sec.138 of the Negotiable Instruments Act (Annexure P -1)before the Judicial Magistrate 1st Class, Jalandhar against petitioners- (1) M/s. Kumar Rubber Industries, (2) Ashok Kumar Viz (partner of Kumar rubber Industries) and 2nd respondent-Mrs. Neelu Viz (also partner of Kumar rubber Industries), wherein the following material allegations are found. 2. The complainant-Sohan Lal, his sons Ashok Kumar, Arun Kumar and neelu wife of Ashok Kumar were partners of the firm-M/s. Kumar tries as per the partnership deed dated 1.10.1995. On account of disputes amongst the partners, complainant-Sohan Lal and his son-Arun Kumar retired from the partnership by the retirement deed dated 17.6.1996. At that time, the account of the partnership were gone into and a sum of rs.5,18,698.33 was found due to the complainant from the partnership by way of his share of the assets which he was surrendering to the continuing partners. This amount was payable by the containing partners namely, Ashok kumar and Neelu and in order to discharge the above said liability, Ashok kumar issued cheques detailed as follows : (1) No.466337 dated 18.11.1996 for Rs.95,561/-, (2) No.466338 dated 23.12.1996 for Rs.1,23,137.33, (3) No.466339 dated 23.1.1997 for Rs.1,50,000/-, (4) No.466340 dated 28.2.1997 for Rs.1,50,000/-. In favour of the complainant drawn on Canara Bank Jalandhar for and on behalf of the firm and the partners. At the time of issuing the cheques, the accused assured that they would be honoured. The accused after issuing the cheques, requested the complainant to delay the presentation of these cheques for some time as he had not been able to arrange for the requisite funds to meet the cheques, which request was conceded by the complainant. 3. On 24.2.1997, accused handed over to the complainant a banker cheque No.800757 dated 24.2.1997 for Rs.63,561/- issued by Canara bank, Mai Hiran Gate, Jalandhar and told him to adjust the said payment towards cheque No.466337 dated 18.11.1996 promising that the balance amount of the cheque would be paid in cash on the next day but he did not do so. 4. The complainant presented the aforesaid four cheques in Canara Bank, mai Hiran Gate, Jalandhar City through his bankers - Punjab National Bank, jalandhar City for encashment but they were returned uncashed by memos dated 28.2.1997 and 18.3.1997 with the remarks that there was no sufficient balance to meet these cheques. 4. The complainant presented the aforesaid four cheques in Canara Bank, mai Hiran Gate, Jalandhar City through his bankers - Punjab National Bank, jalandhar City for encashment but they were returned uncashed by memos dated 28.2.1997 and 18.3.1997 with the remarks that there was no sufficient balance to meet these cheques. The complainant got a legal notice dated 18.3.1997 issued to the accused through registered post calling upon them to make the payment on account of the dishonoured cheques, but they have failed to do so. Accused - Ashok Kumar and Neelu are actively engaged in the day to day business of the firm and are thus responsible for the conduct of the business of the firm. Therefore, they along with the firm, are liable for the commission of the offence punishable under Sec.138 of the negotiable Instruments Act. 5. Taking into consideration the preliminary evidence and the materials placed the learned J. M. I. C. , Jalandhar ordered the accused to be summoned under Sec.138 of the Negotiable Instruments Act by order dated 9.8.1997 (Annexure P-2 ). 6. The petitioners have, therefore, approached this Court under Sec.482 Cr. P. C. for quashing the complaint (Annexure P-1) and the summoning order (Annexure P-2) wherein they have mainly alleged as follows :- 7. The accounts were settled and post-dated cheques were issued. However, after the execution of the retirement deed dated 17.6.1996, some disputes arose between the parties as the properties owned by the firm were illegally held, for which the petitioner had to seek the help of the police to settle the pending dispute. The amount covered by Cheques No.466337 to 46634 was duly received and the receipts against these cheques were also issued in favour of the petitioner. Another sum of Rs.63,651/- was also given to the respondent by way of bankers cheque dated final. The respondents has admitted only the payment by way of bankers cheque, but has alleged that the other cheques presented for encashment were returned for want of sufficient funds. It was alleged that cheques were returned by memo dated 28.2.1997 and 1.3.1997 and that legal notice was issued on 18.3.1997. Notice under Sec.138 of the Negotiable Instruments Act has to be issued within 15 days of the receipt of the cheque/memos uncashed. The entire amount has been paid and nothing is due. 8. It was alleged that cheques were returned by memo dated 28.2.1997 and 1.3.1997 and that legal notice was issued on 18.3.1997. Notice under Sec.138 of the Negotiable Instruments Act has to be issued within 15 days of the receipt of the cheque/memos uncashed. The entire amount has been paid and nothing is due. 8. After entering appearance and inspecting the records, it is found that the cheques were different whereas the cheques mentioned before the Court are with different numbers as follows : (1) Exhibit P-1 is Cheque No.2287337 dated 28.2.1997 for Rs.1,50,000/ (2) Exhibit P-2 is Cheque No.2287336 dated 23.1.1997 for Rs.1,50,000/ (3) Exhibit P-3 is Cheque No.2287334 dated 18.11.1996 for Rs.95,561/ (4) Exhibit P-4 is Cheque No.2287335 dated 23.12.1996 for Rs.1,23,137.33/-. 9. The complaint has been filed on the basis of these four cheques and the number of cheques and the dates do not tally. The entire complaint has been that the cheques mentioned have not been paid, whereas they have all been paid and cleared. Different cheques with different cheques numbers have been produced into Court. Exhibited cheques were not part of the complaint. 10. There is no allegation in the complaint that the cheques exhibited were issued in discharge of any legally enforceable debt or other liability. In such a case, the complaint is not maintainable and has to be quashed. The cheques exhibited did not tally with cheque numbers given in the complaint or in the summoning order. No case under Sec.138 read with Sec.139 of the Negotiable Instruments Act is made out. 11. The 1st respondent filed a reply containing the following allegations 12. Notice was given to the petitioners on 8.3.1997 about the bouncing of the cheques (Annexure R-1) but a copy of the same has not been attached with the present petition. The petitioners counsel replied to the said notice dated 13.3.1997. Therefore, it has been wrongly mentioned that the notice was issued on 18.3.1997. 13. It is denied that the accounts were properly settled or that any property was illegally withheld. The petitioners initially issued cheques bearing nos.466337 to 466340 dated 18.11.1996 for Rs.95,561/-, dated 23.12.1996 for Rs.1,23,137.33; dated 23.1.1997 for Rs.1,50,000/-; and dated 8.2.1997 for Rs.1,50,000/- drawn on Oriental Bank of Commerce. 13. It is denied that the accounts were properly settled or that any property was illegally withheld. The petitioners initially issued cheques bearing nos.466337 to 466340 dated 18.11.1996 for Rs.95,561/-, dated 23.12.1996 for Rs.1,23,137.33; dated 23.1.1997 for Rs.1,50,000/-; and dated 8.2.1997 for Rs.1,50,000/- drawn on Oriental Bank of Commerce. As per the retirement deed (Annexure R-4), the cheques were to be returned back to the continuing partners (petitioners herein) within 15 days, who had to issue cheques for the same amount in favour of the same persons failing which the retirement deed would not take effect. This was done as the operation of the Bank account of the firm- M/s. Kumar Rubber Industries had been closed at that time. As per the retirement deed, the said cheques drawn on Oriental Bank of Commerce were returned to the 1st petitioner, who then issued other cheques Nos.2287334 to 2287337 drawn on Canara Bank and having the same dates, being post-dated as per the retirement deed for the same amount in order to discharge their pre-existing liability as per the retirement deed. It is denied that any amount was received against these cheques or the said cheques were presented for payment by the respondent. The cheques exhibited in the complaint are the ones which were re-issued by the petitioners on the basis of the retirement deed. The complaint has been filed on the basis of the cheques bearing Nos.2287334 to 2287337, and the said cheques have been rightly exhibited as Annexure P-3 to P-6 Cheque No.466337 to 466340 were the cheques which were earlier issued to this respondent but these cheques have been duly returned to the petitioners and no payment has been received against the same. 14. An application has also been moved before the trial Court that the complaint pertains to the bouncing of Cheque Nos.2287334 to 2287337 as mentioned in the legal notice dated 8.3.1997 which were presented to the Bank for payment. That application dated 6.6.1998 is pending before the trial Court. The receipt dated 25.2.1997 alleged to have been executed by the respondent has been forged by the 2nd petitioner. This respondent denies having received any payment against the liability of Rs.5,18,698.33 except Rs.63,561/- as mentioned in the complaint. The cheque have been issued in lieu of the retirement deed and therefore it is a legally enforceable debt. 15. The receipt dated 25.2.1997 alleged to have been executed by the respondent has been forged by the 2nd petitioner. This respondent denies having received any payment against the liability of Rs.5,18,698.33 except Rs.63,561/- as mentioned in the complaint. The cheque have been issued in lieu of the retirement deed and therefore it is a legally enforceable debt. 15. I have heard the counsel for both the sides and perused the records on file. 16. There is no dispute that the 2nd petitioner - Ashok Kumar Viz, his wife - Neelu Viz (2nd respondent herein), Ashok Kumar Vizs father-Sohan Lal Viz (1st respondent herein) and Ashok Kumar Vizs brother-Arun Viz were partners of the 1st petitioner firm - M/s Kumar Rubber industries. There is also no dispute that the parties executed a retirement deed by which 1st respondent -Sohan Lal Viz and Arun Viz retired from the firm with effect from 17.6.1996 (the date on which the retirement deed was executed) and Ashok Kumar Viz and his wife - Neelu Viz continued the partnership business. The copy of this retirement deed (Annexure R-4) provides (in para - 2) that the amounts due to the retiring parties shall be paid by the continuing parties upto 28.2.1997, and in case the continuing parties fail to clear the dues of the retiring parties this retirement deed shall both take place and the retiring parties shall continue to be the partners. Para-6 of this deed provides that the continuing parties shall be liable to get release of the title deeds of the front portion of Kothi No.119, Adarsh Nagar, jalandhar and hand over the same to Sohan Lal Viz immediately on settlement of Bank loans/limits. Para-9 of this deed provides that Neelu Viz and ashok Kumar Viz shall issue the cheques from their Savings Accounts Nos.2624 and 1754 of the Oriental Bank of Commerce, Jalandhar. The cheques relevant for our purpose are as follows :- (1) Cheque No.466337 dated 18.11.1996. (2) Cheque No.466338 dated 23.12.1996. (3) Cheque No.466339 dated 23.1.1997. (4) Cheque No.466340 dated 28.2.1997. all issued in favour of Sohan Lal Viz. This para also provides that the continuing partners shall take back the above mentioned cheques within 15 days from the date of signing of this deed and shall issue cheques which shall be of the same amounts and dates and shall be issued in the same names as mentioned therein. all issued in favour of Sohan Lal Viz. This para also provides that the continuing partners shall take back the above mentioned cheques within 15 days from the date of signing of this deed and shall issue cheques which shall be of the same amounts and dates and shall be issued in the same names as mentioned therein. This para also provides that in case they are unable to do the same, the retirement deed shall not take effect and the retiring parties shall continue to remain as partners. It has further been mentioned in this para that this has been done because the operation of the firms bank account has been closed by the bank at present. 17 The complaint lodged by Sohan Lal Viz (Annexure P-1) under section 138 of the Negotiable Instruments Act against the petitioners and Mrs. Neelu Viz refers to the retirement deed and mentions that the accounts were looked into whereby it was found that Rs.5,18,698.33 was found due to the complainant from the partnership towards his share of the assets, which he was surrendering to the continuing partners. According to the complainant, cheques bearing Nos.466337 dated 18.11.1996, 466338 dated 23.12.1996, 466339 dated 23.4.1997 and 466340 dated 28.2.1997 were issued by the 2nd petitioner - Ashok Kumar Viz in order to discharge the aforesaid legal liability. The complaint also mentions that these cheques drawn on Canara Bank, Jalandhar were presented for payment but were returned uncashed with the memos dated 28.2.1997 and 1.3.1997. The complaint further mentions that a legal notice as contemplated under Sec.138 of the Negotiable Instruments Act was issued on 18.3.1997 calling upon the accused to make payment of the amount but the accused have not paid the amount. 18. In the preliminary evidence, the complainant examined himself and proved the cheques marked as Exhibits P1 to P4, the memos sent by the bank namely Exhibits P5 and P6, the copy of the legal notice Exhibit P7 the postal receipts and acknowledgements as Exhibits P8 to P13. He also proved the retirement deed Exhibit P14. The statements of accounts were also produced. It is on the basis of the evidence that the petitioners and 2nd respondent - Neelu Viz were summoned to fact trial for the offence under section 138 of the Negotiable Instruments Act. 19. He also proved the retirement deed Exhibit P14. The statements of accounts were also produced. It is on the basis of the evidence that the petitioners and 2nd respondent - Neelu Viz were summoned to fact trial for the offence under section 138 of the Negotiable Instruments Act. 19. The learned counsel for the petitioners also contends that even as per the complaint the cheques were dishonoured and returned with memos dated 28.2.1997 and 1.3.1997 but the notice under Sec.138 of the negotiable Instruments Act was given on 18.3.1997 and therefore the notice is not valid. 20. So far as the notice under Sec.138 of the Negotiable Instruments act is concerned the complaint of course, mentions that the notice was issued on 18.3.1997 and this has been taken advantage of by the petitioners but obviously this is a mistake. The 1st respondent has produced Annexure r-1, the copy of the notice issued on behalf of the 1st respondent which shows that the notice is dated 8.3.1997. The 1st respondent also produced the reply sent on behalf of the petitioners wherein it has been specifically stated that the notice issued on behalf of the 1st respondent is dated 8.3.1997. In para-3 of the reply filed by the 1st respondent to this petition, he has specifically stated that the notice was issued on 8.3.1997 and that the petitioners counsel had also replied to the said notice on 13.3.1997. This has not been questioned by filing any replication. Therefore it is clear that the notice was issued on behalf of the 1st respondent on 8.3.1997 i. e. within 15 days of the receipt of the intimation from the Bank about the dishonour. Therefore, this contention of the petitioners cannot be accepted. 21. The learned counsel for the petitioners next contends that the complaint covers four cheques whereas Sec.219 of the Criminal Procedure code bars clubbing in a single complaint more that three offences committed within a period of 12 months and therefore the complaint is liable to be quashed. 22. Of course, the 1st respondent/complainant has clubbed four cheques in the complaint but the learned counsel for the 1st respondent contends that the complaint cannot be quashed on this ground. 23. 22. Of course, the 1st respondent/complainant has clubbed four cheques in the complaint but the learned counsel for the 1st respondent contends that the complaint cannot be quashed on this ground. 23. The learned counsel for the 1st respondent relied upon a decision of this Court in Anita V/s. Anil K. Mehra, 1996 (1) R. C. R.257, wherein it was held as follows : "some help can be taken in this regard from the decision of the Supreme court in the case of State of Andhra Pradesh V/s. Kandimala Subbaiah and another, AIR 1961 S. C.1241. The facts were different but it was observed that where alleged offences had been committed in course of the same transaction, the abovesaid limitation will not apply. A similar argument (had taken) advanced before Delhi High Court in the case of Station Shox pvt. Ltd. Co. and others V/s. Auto Tensions (P) Ltd. , 1994 (1) Recent CR 3. Therein too it was argued that separate complaint should have been filed with respect to each cheque that was dishonoured. The learned Single judge of that Court negatived the plea by holding that no prejudice to caused to be the petitioner by filing of one complaint. However, the accused were permitted to raise these points before the trial Court. In fact for purposes of the present order one is constrained to observe that as per the allegations a specific amount was due. Certain post-dated cheques were issued. They were numbering 9/10 (already mentioned above in individual complaint ). It was therefore one transaction and to state that there has to be a separate complaint with respect to each cheque that was dishonoured will not be correct. Sec.219 of the Code of Criminal Procedure, therefore will not be bar in the peculiar facts of the case. Therefore this Court has no hesitation in repelling the said arguments. " 24. Therefore, the learned counsel for the 1st respondent contends that all these cheques form part of the same transaction and that being so a single complaint clubbing all these cheques is maintainable. I agree with the learned counsel for the 1st respondent in this respect. Therefore this Court has no hesitation in repelling the said arguments. " 24. Therefore, the learned counsel for the 1st respondent contends that all these cheques form part of the same transaction and that being so a single complaint clubbing all these cheques is maintainable. I agree with the learned counsel for the 1st respondent in this respect. In the present case on hand also even according to the petitioners, the accounts of the partnership were settled, the retirement deed (Annexure R-4) was executed on 7.6.1996 and post-dated cheques were issued to the 1st respondent who was retiring from the partnership. Therefore all these form part of the same transaction a single complaint clubbing all the four cheques is therefore maintainable. So the complaint cannot quashed on the ground urged by the petitioners. 25. The learned counsel for the 1st respondent further contends that even otherwise the complainant can choose before the trial Court the three cheques with reference to which he want to restrict the prosecution. In this connection the learned counsel for the 1st respondent refers to the decisions of the madras High Court in Printo Stick V/s. H. C. Oswal, 1996 (2) RCR (Crl.) 375 : 1996 Important and Selected Judgments (Banking) 618 and S. Kiran V/s. L. C. Corporation, 1994 (2) Civil Court Cases 425, which certainly support the contention of the learned counsel for the 1st respondent that the complainant can choose before the trial Court on which of these cheques he would maintain the prosecution and that the complaint cannot be quashed on this ground. 26. I agree with the learned counsel for the 1st respondent in this respect also. Simply because the complainants has clubbed four cheques in a single complaint, the complaint need not be quashed. It is not such a defect which goes to the root of the matter. Because the complainant can even be directed to choose before the trial Court the three cheques on which he wpuld prefer to maintain the complaint in order to bring the complaint in conformity in order to bring the complaint in conformity with Sec.219 of the Criminal Procedure code. Therefore this contention put forward by the learned counsel for the petitioners for quashing the complaint cannot also be accepted. 27. Therefore this contention put forward by the learned counsel for the petitioners for quashing the complaint cannot also be accepted. 27. Another contention put forward by learned counsel for the petitioners is that the entire payment against the said cheques (bearing Nos.466337 to 466340) has been made and receipt (Annexure P-7) dated 25.2.1997 has also been issued by the complainant and therefore this complaint is not maintainable. But, the complainant/1st respondent has denied in his reply that the entire amount has been paid and that the receipt - Annexure P-7 dated 25.2.1997 was executed by him. According to the complainant - 1st respondent this receipt is a forged one. But this Court will not in exercise of its powers under Sec.482 Cr. P. C. go into these contentions minutely give a finding whether the receipt was executed by the 1st respondent/ complainant or not and on that basis undertake the process of quashing the complaint. Once the execution of the receipt Annexure P-7 is denied the burden will be upon the petitioners to prove the execution of the same. Therefore this being a disputed question of fact, evidence will have to be gone into by the trial Court, where the complaint is pending and in the circumstances of the case, the complaint cannot be quashed on this ground. 28. Yet another contention put forward by the learned counsel for the petitioners is that though the complaint has been based upon the four cheques bearing No.466337, 466338, 466339 and 466340 even as per the retirement deed - Annexure R-4 these cheques have to be taken back by the petitioners and fresh cheques had to be issued for the same amounts in the same names. The learned counsel for the petitioners contend that after the retirement deed Annexure R-4 was executed, some disputes arose between the parties as the properties owned by the firm were illegally held in respect of which the petitioners had to be seek police help. He also points out that as per para-6 of Annexure R-4 (the retirement deed), the petitioners had to get released all the title deeds in respect of the front portion of kothi No.119 Adarsh Nagar, Jalandhar after settlement of the bank loans/limits and then hand over the same to the complainant. He also points out that as per para-6 of Annexure R-4 (the retirement deed), the petitioners had to get released all the title deeds in respect of the front portion of kothi No.119 Adarsh Nagar, Jalandhar after settlement of the bank loans/limits and then hand over the same to the complainant. The learned counsel for the petitioners therefore contends that the cheques were issued only as a security and not in discharge of any pre-existing legal liability or debt. 29. The learned counsel for the petitioners also contends that Cheque nos.2287334, 2287335, 2287336, 2287337 produced into the evidence before the trial Court as Exhibits P-1 to P-4 (typed copies thereof produced along with this petition as annexure P-5, P-6, P-4 and P-3 respectively) were not issued in discharge of any pre-existing legal liability on debt. He also points out that these are not the cheques on which the complaint is based. Therefore, he contends that the complaint under Sec.138 of the negotiable Instruments Act is not maintainable. 30. Of course, in order to attract the provisions of Sec.138 of the negotiable Instruments Act, the cheques should have been issued in discharge of a pre-existing debt or legal liability. The learned counsel for the 1st respondent points out that the allegations in the complaint (Annexure P-1) are that the 2nd petitioner his wife (2nd respondent herein) the complainant and the complainants other son - Arun Kumar Viz were partners of the 1st petitioner firm and that in view of certain disputes among the partners the retirement deed Annexure R-4 dated 17.6.1996 was executed by and under which the 1st respondent complainant and Arun Kumar Viz retired from the partnership. He also refers to the allegations in the complaint that at the time of the retirement accounts were gone into and a sum of Rs.5,18,698.33 was found due to the complainant from the partnership concern, being his share of the assets which he was surrendering in favour of the continuing partners. Therefore the learned counsel for the 1st respondent/complainant contends that a specified sum was found due to the complainant and it is in discharge of the said legal liability or debt that these cheques were issued. He further points out initially the cheques were the issued. Therefore the learned counsel for the 1st respondent/complainant contends that a specified sum was found due to the complainant and it is in discharge of the said legal liability or debt that these cheques were issued. He further points out initially the cheques were the issued. He further points out initially the cheques bearing No.466337, 466338, 466339 and 466340 were issued but later on as per the retirement deed, they were taken back and fresh cheques bearing No.2287334, 2287335, 2287336 and 2287337 were issued. Therefore the learned counsel for the 1st respondent/complainant contends that this contention put forward by the petitioners cannot be accepted. 31. But, the learned counsel for the petitioners refers to certain paragraphs of the retirement deed (Annexure R-4) in support of his contention that the cheques were not issued in discharge of any pre-existing debt or legal liability. First of all he points out to paragraphs 2 of the retirement deed which reads as follows : "that the amounts due to the retirement parties shall be paid by the continuing parties upto 28.2.1997. That in case the continuing parties. Sr. No. Cheque No. DATE Amount Person in whose favour cheque will be issued 1.466334 17.08.1996 1,54,593.21 Smt . Alka Vij 2.466335 17.09.1996 1,50,000.00 Smt . Alka Vij 3.466336 18.10.1996 2,70,467.80 Mr. Arun Vij 4.466337 18.11.1996 95,561.00 Sh . Sohan Lal Vij 5.466338 23.12.1996 1,23,137.33 Sh . Sohan Lal Vij 6.466339 23.01.1997 1,50,000.00 Sh . Sohan Lal Vij 7.466340 28.02.1997 1,50,000.00 Sh . Sohan Lal Vij 8.0050865 28.02.1997 8,300.00 Mr. Arun Vij It is further agreed that the continuing partners shall take back the above mentioned cheques within fifteen days from the date of signing of this agreement and shall issue cheque which shall be of the same amounts and dates and shall be issued in the same names as mentioned above. In case, they ace unable to do the same the retirement deed shall not take effect and the retiring parties shall continue to remain as partners. This has been done because the operation of bank account of the firm Kumar Rubber fail to clear the dues of the retiring parties this retirement deed shall not take place and the retiring parties shall continue to be the partners. " 32. The learned counsel for the petitioners also refers to para (9) of the retirement deed which reads as follows : "that Smt. Neelu Viz and Mrs. " 32. The learned counsel for the petitioners also refers to para (9) of the retirement deed which reads as follows : "that Smt. Neelu Viz and Mrs. Ashok Kumar shall issue the following cheques from their saving funds accounts No.2624 and 1754 of Oriental bank of Commerce, Bhagat Singh Chowk, Jalandhar. Industries has been closed by the bank at present. " 33. Therefore the question is whether the cheques mentioned in the complaint were issued by the petitioners in discharge of any pre-existing legal liability or debt or as a security as claimed by the petitioners. This Court has also to see whether this court can or will go into the question at all in these proceedings under Sec.482 Cr. P. C. (to quash the complaint ). 34. For this purpose we will have to see the allegations in the complaint as obviously in proceedings under Sec.482 Cr. P. C. , this Court will have to take the allegations in the complaint as they are and on that basis examine whether there are grounds for quashing the complaint in question. The complaint says that on account of the dispute among the partners, the retirement deed dated 17.6.1996 was executed and that the complainant and his other son - Arun vij retired from the partnership. The complaint further says that at the time of the retirement, the accounts were gone into, and that a sum of Rs.5,18,693.93 was found due to the complainant from the partnership as he was surrendering his share of the assets in favour of the continuing partners. It also states that in order to discharge the aforesaid legal liability the cheques bearing Nos.466337 to 466340 were issued in favour of the complainant drawn on Canara Bank, jalandhar. Even in this petition filed under Sec.482 Cr. PC. by the petitioners, it has been admitted that the complainant who was a partner of the 1st petitioner firm retired from the partnership on 17.6.1996 along with Arun Vij, and that accounts were settled and post dated cheques were issued. Even in this petition filed under Sec.482 Cr. PC. by the petitioners, it has been admitted that the complainant who was a partner of the 1st petitioner firm retired from the partnership on 17.6.1996 along with Arun Vij, and that accounts were settled and post dated cheques were issued. In view of these averments this Court will not examine the contention that the above said cheques were issued as a security since this is a matter which cannot be taken into consideration for quashing the F. I. R. For that purpose the cheques were issued will be a question of fact which will have to be gone into only by the trial court. Similarly when the complainant Annexure P-1 specifically says that at the time of the retirement of the complainant and his other son the accounts were gone into and a specified sum of Rs.5,18,693.33 was found due to the complainant by way of his share of the assets which he was surrendering to the continuing partners at the time of his retirement, this Court cannot examine whether this averment in the complaint is true or not and then quash the complaint on the ground that the cheques were not issued for discharging any pre-existing liability or debt. 35. The learned counsel for the 1st respondent/complainant also refers to Sec.139 of the Negotiable Instruments Act, which reads as follows : "139. Presumption in favour of the holder.- It shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge in whole or in part of any debt or other liability. " 36. Relying upon this provision the learned counsel for the 1st respondent/complainant contends that there being a presumption that the cheques were issued in discharge of pre-existing liability or a debt, it is for the petitioners to rebut the same and for this purpose the petitioners will have to lead evidence that too before the trial Court only. He further contends that the purpose for which the cheques were issued is a matter which could be decided only by the trial Court. Therefore he contends that the complaint cannot be quashed at the threshold itself by examining this question without any evidence. 37. He further contends that the purpose for which the cheques were issued is a matter which could be decided only by the trial Court. Therefore he contends that the complaint cannot be quashed at the threshold itself by examining this question without any evidence. 37. In this connection the learned counsel for the 1st respondent/complainant relies upon the decision of the Honble Supreme Court in M/s. Modi cements Ltd. V/s. Kuchil Kumar Nandi, 1998 (2) RCR (Crl.) 77; A. I. R.1998 s. C.1057, wherein it was held as follows : "it is needless to emphasize that the Court taking cognizance of the Complaint under Sec.138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Sec.139 of the act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could have not been dismissed by the High Court at the threshold. " 38. The learned counsel for the 1st respondent/complainant also relied upon a decision of this Court in Chand Rattan Newar V/s. Shayam Rattan newar, 2000 (4) R. C. R. (Criminal) 416. That was also a case where Shayam rattan Newar, the complainant filed a Criminal complaint under Sec.138 of the Negotiable Instruments Act against Chand Rattan Newar. In the said complaint it was alleged that the accused and his brother (the complainant)had a joint sitting in the presence of certain persons for resolving a disputes as to the payment of the outstanding amount by the accused to the complainant. It was also alleged that a settlement was arrived at between them, with the help of others, and in pursuance thereof the accused over a cheque for the said amount to the complainant. A similar contention was put forward by the accused that there was no debt or liability which was to be discharged and therefore no case under Sec.139 of the Negotiable Instruments act was made out. The decision of the Honble Supreme Court in modi Cements case cited above was relied upon and it was held that in the circumstances there was no ground for quashing the complaint or the summoning order inasmuch as the accused would get an opportunity to put forward his case during trial. 39. The decision of the Honble Supreme Court in modi Cements case cited above was relied upon and it was held that in the circumstances there was no ground for quashing the complaint or the summoning order inasmuch as the accused would get an opportunity to put forward his case during trial. 39. Another decision on which the learned counsel for the 1st respondent/complainant relies upon is a decision of this Court in m/s Mahaplasto Ltd. V/s. M/s Bhushan Steels and Strips Ltd. , 2000 (1) R. C. R. (Criminal 557 wherein also it was urged by the accused that the cheque was issued as a security in discharge of the liability of another person and therefore the complaint should be quashed. This Court while repelling this contention held as follows : "there being no evidence on record, any observation made by me in regard to the question whether the issuance of cheque as a security amounts to liability or not will prejudge the parties. Prima facie I am of the opinion that even if the cheque is issued as security or in discharge of liability of any other person it amounts to a liability which has been undertaken by the drawer of the cheque. Since the decision on the point raised by the learned counsel for the petitioners depends on the evidence to be adduced by the complainant and petitioners, this Court will not be in a position to quash the complaint. To quash the complaint, one has to look into the averments contained in the complaint. The averments made in the complaint clearly show that the cheque in question has been issued only for discharging the liability. It is also not for me to go into the question whether there was any settlement. " 40. Of course, the learned counsel for the petitioners on the other hand relies upon a decision of the Himachal Pradesh High Court in Narinder Kumar V/s. Harnam Singh, 2000 (3) R. C. R.706, wherein it was held that the complainant has to prove that the cheque which bounced was issued for discharging a debt or legal liability. There cannot be any question about this proposition of law. But the question is whether this should be gone into in proceedings under Sec.482 Cr. P. C. for quashing the complainant itself. There cannot be any question about this proposition of law. But the question is whether this should be gone into in proceedings under Sec.482 Cr. P. C. for quashing the complainant itself. This decision relied upon by the teamed counsel for the petitioners was rendered in a criminal appeal and not on a petition under Sec.482 Cr. P. C. for quashing the complaint. Therefore, this decision will not be of help to the petitioners in the circumstances of the case. 41. The learned counsel for the petitioners also relies upon a decision of the Gujarat High Court in Shanku Concretes Pvt. Ltd. V/s. State of Gujarat, 2000 (3) R. C. R. (Criminal) 258 in support of his contention that if the cheques were issued as collateral securities and not to discharge an existing debt no offence under Sec.138 of the Negotiable Instruments Act was made out. That was a case where the Court held that there was no debt or liability on the date of the delivery of the cheques. The Court found that the liability which was to be discharged within the meaning of Sec.138 of the Negotiable Instruments Act, was still to arise. The Court found that this clearly denotes that when the cheques were delivered there was no liability on the part of the accused to discharge any debt. These circumstances the Court held will take the case out of the purview of Sec.138 of the negotiable Instruments Act. But I have already referred to the averments in the complaint as well as in this petition about the existence of a liability or debt. Therefore the decision will not help the petitioner. Even otherwise in the light of the decisions of the Honble Supreme Court in Modi Cements case and the decisions of this Court (cited supra) this decision cannot help the petitioners. 42. Therefore the decision will not help the petitioner. Even otherwise in the light of the decisions of the Honble Supreme Court in Modi Cements case and the decisions of this Court (cited supra) this decision cannot help the petitioners. 42. But the learned counsel for the petitioners refers to paras 2 and 9 of the Retirement Deed (Annexure R-4) which have been extracted above and contends that as per these provisions, it is clear that in case the petitioners fail of clear the due of the retiring partners, the latter shall continue to be the partners and that the retirement deed will not take effect meaning thereby that the retiring partners i. e. the complainant and his other son - Arun Vij will only continue to be the partners and that the non-payment will not give rise to a cause of action to the complainant to lodge the complaint under section 138 of the Negotiable Instruments Act. Because according to the learned counsel for the petitioners the complainants claim itself is based upon his retirement from the partnership and the surrender of his share in the assets in the partnership in favour of the continuing partners for which the cheques were issued and if this basis itself goes and if the retiring partners should continue to be the partners of the firm, and if the retirement deed is not to take effect on account of the non-payment of the amount due under these cheques in question then there will be no liability on the part of petitioners to pay any amount. The learned counsel for the petitioners therefore contends that this being the admitted position as is seen from the document produced by the complainant himself namely the retirement deed -Annexure R-4 it cannot now be stated that the cheques were issued for any pre-existing liability and therefore the dishonour of the cheques could attract the provisions of Sec.138 of the Negotiable. Instruments Act. 43. But the learned counsel for the complainant contends that a reading of the complaint shows that the complainant retired from the partnership and a sum of Rs.5,18,698.33 was found due to the complainant for which the cheques in question were issued. Instruments Act. 43. But the learned counsel for the complainant contends that a reading of the complaint shows that the complainant retired from the partnership and a sum of Rs.5,18,698.33 was found due to the complainant for which the cheques in question were issued. He also contends that what is now sought to be contended by the petitioners is only the very defence to the complaint under Sec.138 filed by the complainant which cannot be now taken into consideration for quashing the complaint. 44. I have already pointed out the allegations in the complaint as well as the averments in the present petition regarding the dissolution of the partnership, the settlement of accounts, the entitlement of the complainant to a particular amount and the issuance of these cheques in favour of the complainant for the discharge of the above said amount due to the complainant. As pointed out already, we have to take the allegations in the complaint as they are, and we cannot, at this stage, take into consideration the defence put forward by the petitioners. This is especially so, when the petitioners want to rely upon a document namely, the retirement deed (Annexure R-4) produced by the complainant along with his reply, to support their contention, which itself has to be considered at the time of the trial before the Magistrate. I have also referred to the decision of the Honble supreme Court in Modi Cements case and the decisions of this Court in chand Rattan Newars case and M/s. Mahaplasto Ltd. cases (supra) which clearly show that the petitioners would have the opportunity to put forward their case during the course of the trial. Therefore, this contention against will not help the petitioners. 45. Another contention put forward by the learned counsel for the petitioners is that while the complaint is based upon the cheques No.466337 to 466340, the cheques exhibited as Ext. P1 to P4 before the trial Court have different cheque numbers i. e. cheque Nos.2287334 to 2287337 (the typed copies of which have been produced with this petition as Annexures p-5, P-6, P-4 and P-3 ). The learned counsel for the petitioners contends that the number of the cheques on the basis of which the complaint has been laid do not tally with the cheques produced in the evidence before the trial court. The learned counsel for the petitioners contends that the number of the cheques on the basis of which the complaint has been laid do not tally with the cheques produced in the evidence before the trial court. The learned counsel for the petitioners also contends that without noticing this fact, the learned Magistrate, which shows total non-application of mind by him. He therefore, contends that the complaint and the summoning order have to be quashed. 46. A perusal of the complaint shows that the complaint is based upon the cheques No.466337 to 466340. Para-3 of the complaint mentions that these cheques were issued to the complainant and they were drawn on canara Bank, Jalandhar. There is no reference in the complaint to the cheques bearing Nos.2287334 to 2287337. In the summoning order (Annexure P-2) also it has been mentioned that the cheques bearing Nos.466337 to 466340 were issued in favour of the complaint drawn on Canara bank, Jalandhar. So, it is clear that the cheques mentioned in the complaint and those introduced into evidence are not bearing the same numbers. So, obviously we find that while the complaint is based upon one set of cheques, the cheques produced into evidence in support of the complaint are a different set of cheques. There is no dispute about this fact. It is also seen that the learned Magistrate has not taken note of this aspect while summoning the petitioners. 47. But, the learned counsel for the 1st respondent-complaint contends that the Court will have to take into consideration not merely the complaint, but it has to be read with other records namely, the retirement deed, the notice issued under Sec.138 of the Negotiable Instruments Act and also the cheques produced into evidence. The learned counsel for the complainant refers to Annexure R-1, the notice issued on behalf of the complainant to the petitioners and the other accused wherein it has been mentioned that initially the cheques bearing nos.466337 to 466340 for Rs.5,18,698.33 were issued and that in terms of the retirement deed, the petitioners took back these cheques, and issued cheques bearing numbers 2287334 to 2287337 drawn on Canara Bank, Jalandhar. In this notice Annexure R-1, it has also been mentioned that these cheques were presented for encashment, but were returned with the endorsement "funds insufficient". In this notice Annexure R-1, it has also been mentioned that these cheques were presented for encashment, but were returned with the endorsement "funds insufficient". He also refers to the averment in the notice that bankers cheque for Rs.63,561/- was issued against cheque No.2287334. The learned counsel for the complainant also refers to the demand made in this notice that the petitioners should pay the amount of the aforesaid dishonoured cheques. Therefore, the learned counsel for the complainant contends that if all these records are read together, then, it will be clear that the cheque bearing nos.466337 to 466340, which were initially issued were taken back by the petitioners, and that the cheques bearing No.2287334 to 2287337 which were issued in lieu thereof were presented to the bankers, but were dishonoured, and that it is on this basis notice under Sec.138 of the Negotiable Instruments act was issued. He, therefore, contends that the petitioners cannot take advantage of this omission to refer to these cheques in the complaint, and seek quashment of the complaint. The learned counsel for the complainant also points out that an application to supplement the complaint (Annexure R-5)has also been filed before the Judicial Magistrate 1st Class, Jalandhar, bringing forth these facts and contends that the complaint is not liable to be quashed in the circumstances of the case. 48. The learned counsel for the 1st respondent-complainant relies upon a decision of the Honble Supreme court in U. P. Pollution Control Board V/s. M/s. Modi Distillery, AIR 1988 S. C.1128 and contends that the trial Court can even be permitted to amend the complaint to rectify this omission. That was a case where M/s. Modi Industries Limited, an existing company, had established an industrial unit called M/s. Modi Distillery engaged in the business of manufacture and sale of industrial alcohol. During the process of manufacture of such alcohol, the unit discharged its effluents into the Kali River through a drain which is a stream within the meaning of Sec.2 (j) of the Water (Prevention and control of Pollution) Act, 1974. Under Sec.26 of the said Act it is mandatory for the existing industry to obtain the consent of the board for discharging the effluent into a stream. In accordance with the procedure laid down under the Act, the Company was required to submit an application for the consent of the Board. Under Sec.26 of the said Act it is mandatory for the existing industry to obtain the consent of the board for discharging the effluent into a stream. In accordance with the procedure laid down under the Act, the Company was required to submit an application for the consent of the Board. Instead of the Company, its industrial unit namely, M/s. Modi Distillery applied to the Board for the grant of consent to discharge the effluents into the stream. The said application on scrutiny was found to be incomplete in many respects and the Board informed the industrial unit about the same. The discrepancies were not rectified and the particulars required were not furnished. The Board refused to grant the consent prayed or and also issued a notice under section 20 of the Act directing the Company of furnish information regarding the particulars and names of the Managing Director, Directors and others persons responsible for the conduct of the company. But that information also was not furnished. The Board after drawing the attention of the respondents before the Honble Supreme Court that they were deliberately violating the provisions of the Act and thereby rendering themselves for punishment in terms of Sec.44 of the Act for contravention of the provisions of Sec.25 (1) and 26 of the Act, lodged a complaint against the respondents under Sec.44 of the act, but it was averred in the complaint that M/s. Modi Distillery i. e. the industrial unit was a Company within the meaning of Sec.47 of the Act, that it had knowingly and wilfully discharged the noxious and polluted trade effluents into the river which is a stream within the meaning of Sec.2 (j) of the Act.11 persons were arrayed as accused. Instead of launching the prosecution against m/s. Modi Industries Limited, the Board impleaded its industrial unit - M/s. Modi distillery, the Chairman, Vice-Chairman, Managing Director and other members of the Board of Directors of M/s. Modi Industries Limited i. e. the Company, as respondents. The High court quashed the proceedings on the ground that there could be no vicarious liability saddled on Chairman, Vice-Chairman, managing Director and other members of the Board of Directors of the company unless there was prosecution for the Company i. e. M/s. Modi Industries limited. The High court quashed the proceedings on the ground that there could be no vicarious liability saddled on Chairman, Vice-Chairman, managing Director and other members of the Board of Directors of the company unless there was prosecution for the Company i. e. M/s. Modi Industries limited. On appeal, the Honble Supreme Court held that the, flaw had accrued due to the recalcitrant attitude of Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. The Honble Supreme Court also held that all that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of m/s. Modi Distillery. The Honble Supreme Court also pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board and the legal infirmity is of such a nature which could be easily cured. 49. Relying upon this decision, the learned counsel for the 1st respondent/complainant contends that, that is why the 1st respondent/complaint has filed a petition for supplementing the complaint and for bringing forth the correct numbers of cheques etc. But, this decision relied upon by the learned counsel for the 1st respondent/complainant will not be of help to the complainant in the circumstances of the case. The defect that has crept into the complaint i. e. the omission to give the correct cheque numbers, is not due to any act or omission on the part of the petitioners or the other accused. The complainant has given the number of the cheques, which cheques, according to the complainant himself, have been taken back and fresh cheques were issued. Therefore, the accused are in no way responsible for this defect in the complaint. Even otherwise, the question is whether the complainant can amend the complaint or supplement the complaint by giving the correct cheque numbers etc. Therefore, the accused are in no way responsible for this defect in the complaint. Even otherwise, the question is whether the complainant can amend the complaint or supplement the complaint by giving the correct cheque numbers etc. In the case before the Honble Supreme Court, it was only a case of misdiscreption of the parties, Inspite of calling for the information, the industrial unit did not give the required information. Therefore, instead of making the company which owned the industrial unit as an accused, the industrial unit was made the accused. The chairman, Vice Chairman, the Managing Director and the members of the Board of Directors were already arrayed as the accused. Therefore, in the circumstances, it was considered to be a formal technical defect, which could be cured by an amendment. But, in the present case, the complainant knowing fully well that the cheques bearing No.466337 to 466340 were taken back and cheques Nos.2287334 to 2287337 were issued, and despite the fact that this has been mentioned in the notice issued under Sec.138 of the Negotiable Instruments act on behalf of the complainant to the accused, based the complaint on the cheques bearing Nos.466337 to 466340 without even mentioning anything about the other set of cheques. Obviously, the complaint is based upon the cheques bearing Nos.466337 to 466340. While that being so, the complainant introduced into evidence the cheques bearing Nos.2287334 to 2287337 in proof of the complaint. So, we find that the cheques on which the complaint is based, have not been produced, whereas a different set of cheques was produced into evidence. The summoning order has been passed only on the basis that the cheques concerned in the complaint were 466337 to 466340 only without taking note of the fact that a different set of cheques was introduced into evidence. 50. Therefore, we find that not only the complaint is defective, but also there is total non-application of mind by the learned Magistrate also. This is not a mere technical defect or a mere misdiscreption of the parties which could be allowed to be amended. The cheques are the very basis of foundation of the complaint. So, when the very foundation has not been properly laid by giving the correct numbers of the cheques, the complaint itself becomes not maintainable. This is not a mere technical defect or a mere misdiscreption of the parties which could be allowed to be amended. The cheques are the very basis of foundation of the complaint. So, when the very foundation has not been properly laid by giving the correct numbers of the cheques, the complaint itself becomes not maintainable. Such a defect which goes to the root of the matter, cannot be allowed to be amended and the complainant cannot be allowed to supplement the complaint by giving the numbers of fresh cheques as the basis of the complaint. The complaint cannot thus be made to suit the evidence introduced. Therefore, in my view, the complaint has to fail and to be quashed on that account. . . function keypress (){document. selection. empty ()} function keydown (){document. selection. empty ()} function keyup (){document. selection. empty ()} function Mouseup (){document. selection. empty ()} function Mousedown (){document. selection. empty ()} 51. A Division Bench of the Madras High Court in Vinayagam V/s. Subhash chandran, 2000 (3) R. C. R. (Criminal) 4 considered the question whether the Magistrate has the power to return a complaint to the complaint for removing certain defects and for representing the same. The Division Bench held that the Magistrate and no power to do so and that the complaint has to suffer for the defects in the complaint. 52. The decision in K. Subramanian V/s. Kamakshi Extractions, 1999 (3)R. C. R. (Criminal) 253 will be of no help to the complainant, because it was held therein that if the factual foundation for the offence has been laid in the complaint, the Court should not hasten to quash the criminal proceedings merely on the premise that one or two ingredients have not been stated with details. Because, in the present case, the very factual foundation of the case of the complainant is defective, and this defect goes to the root of the matter affecting the very maintainability of the complaint, the complaint cannot be sustained, and the complainant or supplement the complaint to rectify such a defect. 53. In these circumstances, I am of the view that the complaint in question and the consequential proceedings have to be quashed qua the petitioners. 54. Resultantly, this petition is allowed. The complaint (Annexure P-1) impugned in this petition and the summoning order (Annexure P-2) are quashed qua the petitioners.