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Madhya Pradesh High Court · body

2016 DIGILAW 267 (MP)

Balkrishna v. Ripudaman Singh

2016-03-31

D.K.PALIWAL

body2016
ORDER 1. This petition under section 482 of the Code of Criminal Procedure (in brief “Code”) has been preferred for quashing the proceeding of Criminal Case No.24526/2013, pending in the Court of JMFC, Indore and order passed on 3.9.2014. 2. Brief facts of this petition are that respondent/complainant has filed a private complaint under section 138 of the Negotiable Instruments Act, alleging that petitioner and respondent/complainant have entered into an agreement to sell an agricultural land bearing survey No.403/1 admeasuring 1.214 hectors situated at village Badiyakeema, Indore on 28.5.2013 on consideration amount of Rs.1,75,00,000/-. Rs.1,25,00,000/- cash has been given by the petitioner to respondent as advance and a cheque bearing No.297251 dated 3.6.2013 amounting to Rs.25,000/- was issued in favour of respondent as security purpose. It is further alleged that when respondent/complainant presented this cheque for encashment, the same was returned with a note of “insufficient fund”. Then respondent/complainant sent a legal notice dated 13.8.2013 through his counsel and demanded the amount of cheque. Notice was received by the petitioner but payment has not been made and a false reply has been sent. On the basis of the aforesaid complaint, learned JMFC has explained the particulars of offence to petitioner and also dismissed the application for discharging him. Being aggrieved this petition has been filed. 3. It is submitted that respondent/complainant has not filed the present complaint with clean hands. The petitioner and respondent entered into an agreement to sell dated 28.5.2013 in respect of the “land in question” and as per clause 4 of the agreement, which read as under :- ^^;g fd] foØsrk dks mDr laifÙk ij fdlh Hkh izdkj dk ikfjokfjd fookn ugh gS] uk gh dksbZ U;k;ky; esa izdj.k py jgk gSA ;fn fdlh Hkh izdkj fookn vkrk gS rks mldh leLr tckonkjh foØsrk i{k dh jgsxh rFkk pSd dk Hkqxrku fookn ds fujkdj.k ds ckn gh gksxkA** As per aforesaid clause, any dispute in respect of “land in question”, the same shall be resolved at the cost of respondent and the payment as mentioned in the cheque shall be made after the issue resolved. It is submitted that the respondent concealed the fact from the petitioner that a civil suit is already pending in respect of the “land in question” before the learned IV Additional District Judge, Indore, which was registered as COS No.4-A/2012. It is submitted that the respondent concealed the fact from the petitioner that a civil suit is already pending in respect of the “land in question” before the learned IV Additional District Judge, Indore, which was registered as COS No.4-A/2012. In the reply of the notice petitioner has specifically mentioned that the cheque in question was issued as security purpose and not for discharge of the amount. Learned trial Court has failed to consider the fact that the “cheque in question” was issued in favour of the respondent for security purpose, framed the charge under section 138 of the Negotiable Instruments Act. It is further submitted that the learned Magistrate erred in registering the complaint without examining the complainant on oath and inquiry contemplated under section 202 of the CrPC. Learned Magistrate also failed to consider that no cause of action accure in favour of the respondent. It is prayed that proceeding of Criminal Case No.29058/2013 order dated 3.9.2014 be quashed. 4. Learned counsel appearing on behalf of respondent supports the impugned order and submitted that there is no dispute regarding issuance of cheque and further that cheque has been dishonoured. Hence, learned Magistrate has rightly declined to allow the application for discharge. It is prayed that petition be dismissed. 5. I have considered the submissions made on behalf of the parties and perused the record. 6. To appreciate the submissions of the learned counsel it is necessary to consider the nature of the agreement entered into between the parties. Clause 4 of the agreement reads as under :- ^^;g fd] foØsrk dks mDr laifÙk ij fdlh Hkh izdkj dk ikfjokfjd fookn ugh gS] uk gh dksbZ U;k;ky; esa izdj.k py jgk gSA ;fn fdlh Hkh izdkj fookn vkrk gS rks mldh leLr tckonkjh foØsrk i{k dh jgsxh rFkk pSd dk Hkqxrku fookn ds fujkdj.k ds ckn gh gksxkA** 7. In clause 4 it is also been made clear that there is no family dispute regarding the land in question and no case is pending before any Court in this regard. However, this agreement has been executed on 28.5.2013. 8. From the perusal of the copy of Civil Suit No.4-A/2012 Smt. Rohani Kumari and others v. Surendra Singh and other Pending before XIV th ASJ, Indore and civil suit has been filed on 2.9.2011. However, this agreement has been executed on 28.5.2013. 8. From the perusal of the copy of Civil Suit No.4-A/2012 Smt. Rohani Kumari and others v. Surendra Singh and other Pending before XIV th ASJ, Indore and civil suit has been filed on 2.9.2011. In this suit land bearing survey No.403/1 admeasuring 1.214 hectors situated at village Badiyakeema is in dispute. In this suit respondent has been arrayed as defendant No.2. 9. Thus, it is clear that prior to agreement civil suit was pending between family members of the parties. As per the agreement the payment of disputed cheque be made subject to the resolution of the dispute. 10. As noted above disputed cheque has been given with regard to payment of part of consideration, which was liable to be encashed after resolution of the dispute regarding land in question. 11. Section 138 of the Negotiable Instruments Act read as under :- Section 138: “Dishonour of cheque for insufficiently, etc. 10. As noted above disputed cheque has been given with regard to payment of part of consideration, which was liable to be encashed after resolution of the dispute regarding land in question. 11. Section 138 of the Negotiable Instruments Act read as under :- Section 138: “Dishonour of cheque for insufficiently, etc. of funds in the account- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier ; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation- For the purposes of this section, “debt or other liability means a legally enforceable debt or other liability.” 12. From the aforesaid provisions it is crystal clear that debt or other liability means a legally enforceable debt or other liability. Explanation- For the purposes of this section, “debt or other liability means a legally enforceable debt or other liability.” 12. From the aforesaid provisions it is crystal clear that debt or other liability means a legally enforceable debt or other liability. In the instant case as noted above cheque was not issued for creating any liability or debt but it was issued for payment of balance consideration. Petitioner did not owe any money to the respondent. Hence, applicant cannot be held liable under section 138 of Negotiable Instruments Act. 13. Resultantly, the petition is allowed. The order dated 3.9.2014 and proceedings of Criminal Case No.24526/2013 are hereby quashed. Petition is disposed of accordingly.