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2010 DIGILAW 549 (MP)

Yogendra Singh Thakur v. Preeti Raj

2010-05-13

S.C.SINHO

body2010
ORDER S.C. Sinho, J. 1. Applicant/.accused has filed this petition under Section 482 of Cr.P.C, for quashment of private complaint filed by respondent against petitioner for offence under Section 138 of Negotiable Instrument Act, proceeding in R.T. No. 18132/08 pending before JMFC, Bhopal. 2. Background facts may be summarized as under: - The swajan Grih Nirman Sahkari Sanstha Mydt, Bhopal (hereinafter referred to as "Society") is a registered Co-operative Housing Society. The society has developed a residential housing colony. The society had originally allotted and sold the plot No. 81 in the "Kaushal Nagar Colony" on 10.5.88 in favour of Bahratlal Maithil trough registered sale deed (Ex.P-1). Thereafter, this society against executed another sale deed dated 30.7.90 in favour of Smt. Najni Guda and transferred the same plot No. 81 on her name vide (Ex. P-2). The society again executed sale deed dated 22.7.91 (Ex. P-3) in favour of- Parmeshwar Dayal sale and transferred the plot No. 81 in his name. Prameshwar Dayal on the strength of non existing title executed a sale deed dated 23.2.2007 in favour of respondent Smt. Preeti Raj and her husband Aril Raj, before execution of (Ex. P-4) the society had executed another sale deed of plot No. 81 on 16.1.2002 in favour of Kallu Ram (Ex.P-5). 3. The respondent and her husband were claiming exclusive titled over the plot No. 81 and petitioner believing their version agreed to purchase plot No. 81 and sale agreement was executed between petitioner and husband of respondent No. 1 (Ex. P-6) for a consideration of Rs. 2,80,000/- out of which petitioner had paid 2,00,000/- as sale advance and balance Rs. 80,000/- was given through post dated cheque Rs. 80,000/- dated 30.5.2008 (Ex. P-7). 4. Petitioner came to know through the neighbour that in fact the plot No. 81 was sold to various persons and title dispute is existing in respect of the plot. Petitioner collected aforesaid information from the Sub-Registrar, Bhopal and immediately approached respondent to return his sale advance because respondent has no right over the disputed plot and they cannot sell and execute the sale deed and earlier sale agreement dated 28.4.2008 (Ex. P-6) amount to fraud. 5. The respondent presented the cheque (Ex. P-7) worth Rs. 80,000/-for encashment on 30.5.2008 and 02/03.07.08 which could not be encashed because of petitioner's cautiousness of not keeping fund to avoid embezzlement and bank return the cheque unpaid. P-6) amount to fraud. 5. The respondent presented the cheque (Ex. P-7) worth Rs. 80,000/-for encashment on 30.5.2008 and 02/03.07.08 which could not be encashed because of petitioner's cautiousness of not keeping fund to avoid embezzlement and bank return the cheque unpaid. Respondent issued legal notice dated 14.7.08 (Ex. P-8) as prescribed Negotiable Instrument Act and again on 31.7.08 presented the cheque for encashment and the same was returned unpaid. The respondent again issued legal notice dated 14.8.08 (Ex.P-9) demanding the payment, thereafter respondent executed the sale deed and transferred to Prem Bai Bairagi vide sale deed dated 30.4.2009 (Ex. P-10) about the plot no 81 and did not return the sale consideration of Rs. 2,00,000/ - received from petitioner in pursuant to sale agreement and filed a complaint (Ex. P-11) under Section 138 of Negotiable Instruments Act, duly supported by affidavit of respondent (ex. P-12). The Court below framed charges against petitioner under Section 138 of N.I. Act, on 12.10.2009 (Ex. P-13) and thereafter petitioner/accused filed an application for rejection of complaint (Ex. P-13) but learned trial Court has rejected the application vide order dated 12.10.2009 (Ex.P-14) observing that trial court has no jurisdiction to entertain the application once summons are issued against the petitioner. 6. Learned counsel for the applicant vehemently argued that the complaint do not disclosed any offence against the petitioner and complaint is manifestly attended with mala fide and even un-controverted allegation in the complaint do not disclosed the commission of offence under Section 138 of the Negotiable Instrument Act, and therefore, the same should be dismissed. 7. Learned counsel for the respondent Shri Mukund Agrawal, submitted that in view of condition No. 3 of sale agreement dated 28.4.2008 (Ex. P-6), between petitioner and respondent and her husband, respondent and her husband has already executed a general power of attorney in favour of Rajesh Das Bairagi on 30.4.2008 meaning by just after two days and further petitioner Yogengra Singh Thakur is a witness of the execution thus, it is clear that petitioner has also disposed of the plot as per prevailing practice at Bhopal and in this petition under Section 482 of Cr.P.C. he cannot claim any relief. Learned counsel of the respondent further submitted that earlier notice dated 14.7.2008 was not a notice under Section 138 (b) N. I. Act, on going through contents of the notice it is clear that respondent has intimated to petitioner that on 22.7.2008 again he will deposit the cheque for encashment and as per notice and your assurance respondent submitted the cheque for encashment on 31.7.2008 and when it was dishonoured issued first notice (Ex.P-9) dated 14.8.2008 under Section 138 (b) Negotiable Instrument Act, and thereafter filed the complaint (Ex.P-11) within the stipulated period. 8. I have gone through the record. 9. It is settled position that on each presentation of the cheque during the validity of the cheque and its dishonour, a fresh right and not a cause of action accrues in favour of complainant, but once complainant gives a notice under clause (b) of Section 138, he forfeits such rights in case of failure of the drawer to pay the money within stipulated period, he (drawer) would be liable for the offence and the cause of action for filing the complaint will arise, meaning by cause of action could arise only once and same is relatable to the first notice as held by Apex Court in Prem Chand Vijay Kumar Vs. Yash Pal Singh, 2005 (4) M.P.L.J. (SC) 5. and Krishna Exports Vs. Raju Das, 2006 (2) M.P.L.J. (SC) 90. 10. On going through the contents of notice dated 14.7.2008 (Ex. P-8) it is as clear as day that this notice was not under Section 138 (b) of N.I. Act, but by this notice respondent has simply intimated and requested petitioner to deposit required amount in his account so he can again deposit the cheque for enchashment on 22.7.2008 and as per contents of the notice again this cheque was presented for encashment and dishonoured thereafter respondent gave him a legal notice dated 14.8.2008 (Ex. P-10) under Section 138 (b) of N.I. Act, and filed a impugned complaint (Ex. P-11) before JMFC, Bhopal within stipulated period as such it cannot be said that cause of action has arisen after first notice dated 14.7.2008 and cause of action has arisen only once. 11. Learned Senior counsel for the petitioner Shri Ajay Mishra further argued that respondent had no right tile of claim over the plot No. 81 and therefore, the sale agreement dated 28.4.2008 (Ex. 11. Learned Senior counsel for the petitioner Shri Ajay Mishra further argued that respondent had no right tile of claim over the plot No. 81 and therefore, the sale agreement dated 28.4.2008 (Ex. P-6) executed by respondent and her husband was illegal, unsustainable and void ab-initio in the eye of law and amount of remaining sale consideration was not a lawful due or leaglly recoverable debt or liability. Thus, despite return of cheque by bank no offecnce punishable under Section 138 N.I. Act, could be said to be committed and hence, the cognizance taken by Magistrate is absolutely illegal and without authority of law and placed reliance on R. Kalyani Vs. Janak C. Mehta & Ore. AIR 2009 (SCW) 1836, M/s. M.M.T.C. Ltd, & Anr Vs. M/s Medchl Chemiclas & Pharma R Ltd. & Anr 2001 DCR 580 & V. Sampath Vs. Praveen Chandra, V Shah and another 1999 CRI. L.J. 936 Madras. High Court. 12. Respondent has specifically alleged in her reply that as per sale agreement dated 28.4.2008 (Ex. P-6) condition No. 3 on the direction of petitioner respondent has already executed general power of attorney dated 30.4.2008 (Ex. D-3) in favour of a third person Rajesh Das Bairagi and petitioner was also a witness of execution of this documents and now petitioner cannot take this defence that respondent had no right to file impugned complaint under Section 138 of N.I. Act, because petitioner has sold/ transferred plot No. 81 to Rajesh Das Bairagi. Further on the basis of averments in the petition filed by petitioner this Court cannot conclude that cognizance taken by court below is illegal and without authority of law. 13. Hon'ble Apex Court in the case of Vishwa Mitter Vs. O.P. Poddar (1983) 4 SCC 701 held that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance and no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. In the present case only eligibility criteria prescribed by Section 142 N.I. Act, is that the complaint must be by the payee or the holder in due course. This criteria is satisfied and further on the request petitioner, just after tree days of the sale agreement dated 28.4.2008 respondent has executed a general power of attorney dated 30.4.2008 (Ex. In the present case only eligibility criteria prescribed by Section 142 N.I. Act, is that the complaint must be by the payee or the holder in due course. This criteria is satisfied and further on the request petitioner, just after tree days of the sale agreement dated 28.4.2008 respondent has executed a general power of attorney dated 30.4.2008 (Ex. D-3) where petitioner was a witness of the execution of the power of attorney. Further in a petitioner under Section 482 of Cr.P.C. appreciation of disputed documents cannot be done by this Court as such impugned complaint cannot be quashed under section 482 of Cr.P.C. 14. As Apex Court has held in T.K.Koya Vs. K. Devaraj (2005) 13 SCC 705 , in the pre-summoning evidence, there was no basic for the conclusion that the complainant had not complied with the provisions of Section 138 of the Negotiable Instruments Act, 1981. The exercise of power of quashing was unwarranted on the facts of the case. At this stage we are not concerned with the defence of the accused/petitioner. It would, of course be open to the accused/petitioner to take such defence as may be available to him in accordance with law. 15. It is well settled that the inherent power is exercised for the limited purpose very sparingly where there is an apparent miscarriage of justice. Consequently, this petition devoid of any merit and is hereby dismissed.