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2019 DIGILAW 558 (HP)

Rana Arun Sen v. L. R. Kashyap

2019-05-04

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. As common issue of law is involved in these appeals, they are being disposed of by way of a common judgment, as agreed upon. The reliefs prayed for in the said appeals are as under: "Cr. Appeal No. 790 of 2008 It is, therefore, respectfully prayed that record of the case may kindly be called for, this appeal may kindly be accepted, judgment dated 31.10.2008 passed by the learned Chief Judicial Magistrate, Solan, HP, in Case No. 5/3 of 2005, may kindly be set aside and the complaint of the Appellant under Section 138 of the Negotiable Instruments Act, 1881 may kindly be allowed as prayed for. Any other order or direction, which this Hon’ble Court deems just and proper may also be passed in favour of the petitioner and against the respondent." "Cr. Appeal No. 791 of 2008 It is, therefore, respectfully prayed that record of the case may kindly be called for, this appeal may kindly be accepted, judgment dated 31.10.2008 passed by the learned Chief Judicial Magistrate, Solan, HP, in Case No. 84/10 of 2005, may kindly be set aside and the complaint of the Appellant under Section 138 of the Negotiable Instruments Act, 1881 may kindly be allowed as prayed for. Any other order or direction, which this Hon’ble Court deems just and proper may also be passed in favour of the petitioner and against the respondent." 2. Appellant before this Court, feeling aggrieved, by the factum of bouncing of cheques issued by the respondent in his favour filed Complaints under Section 138 of the Negotiable Instrument Act. During the pendency of those proceedings, a compromise was entered into between the parties and in lieu of the compromise so arrived at between the parties, petitions filed under Section 138 of the Negotiable Instrument Act were withdrawn and fresh cheques were issued by the respondent to the appellant. 3. Incidentally, the said cheques issued in favour of the appellant also bounced. Feeling aggrieved, the appellant again approached the Court by filing Complaints under Section 138 of the Negotiable Instrument Act. 3. Incidentally, the said cheques issued in favour of the appellant also bounced. Feeling aggrieved, the appellant again approached the Court by filing Complaints under Section 138 of the Negotiable Instrument Act. The complaints so filed, stand dismissed by way of impugned judgments by the learned Court below on the ground that the provisions of Section 138 of the Negotiable Instrument Act are not invokable in the case of bouncing of a cheque, if a cheque has been issued by one party to other party on the basis of a compromise. While returning said findings, learned Court below has relied upon the judgment of the Hon’ble Supreme Court in Lalit Kumar Sharma and another Vs. State of Uttar Pradesh and another, (2008) 5 Supreme Court Cases 638. 4. I have heard learned counsel for the parties and have also gone through the impugned judgments as also record of the case. 5. The impugned judgments per se are not sustainable in law. While dismissing the Complaints filed by the appellant, learned Court below has misred the judgment passed by the Hon’ble Supreme Court in Lalit Kumar Sharmas case (supra). The factual matrix of the case before the Hon’ble Supreme Court was that therein a party had invoked the provisions of section 138 of the Negotiable Instrument Act and thereafter the matter stood compromised by the said party with the party which had issued the cheque in issue as well as others. Post compromise, the other party had issued certain cheques to the first party and as said cheques bounced, proceedings under Section 138 of the Negotiable Instrument Act were initiated. The subsequent proceedings so initiated were held to be not maintainable on the ground that the original proceedings, which stood initiated as a result of the original cheque having been bounced, stood taken to their logical conclusion by the learned Trial Court. Relevant para of the judgment of Hon’ble Supreme Court is quoted here-in-below : "17. Thus, a second cheque was issued by Manish Arora for the purpose of arriving at a settlement. The said cheque was not issued in discharge of the debt or liability of the Company of which the appellants were said to be the Directors. There was only one transaction between Shri Ashish Narula, Shri Manish Arora, Directors of the Company and the complainant. They have already been punished. The said cheque was not issued in discharge of the debt or liability of the Company of which the appellants were said to be the Directors. There was only one transaction between Shri Ashish Narula, Shri Manish Arora, Directors of the Company and the complainant. They have already been punished. Thus, the question of entertaining the second complaint did not arise. It was, in our opinion, wholly misconceived. The appeal, therefore, in our opinion, must be allowed. It is directed accordingly. The respondent shall bear the costs of the appellants. Counsels fee assessed at Rs.25,000/." 6. This important aspect of the matter has not been taken into consideration in the present case by the learned Trial Court, resulting perversity in the judgments which stand impugned before this Court. Learned Trial Court has erred in not appreciating that it is not as if the Hon’ble Supreme Court has held that in every case where cheque resulted out of compromise if bounced, provisions of Section 138 are not to be invoked. In fact, Hon’ble Supreme Court held that in case a party has already invoked the provisions of Section 138 of the Negotiable Instrument Act and proceedings either stood decided or were pending, then another cheque is issued in view of compromise, subsequent proceedings are not maintainable. Admittedly, in the present case, after filing of Complaints under Section 138 of the Negotiable Instrument Act, compromise was arrived at between the complainant and the accused and in lieu of the same, the Complaints were withdrawn. The cheques which were issued in lieu of the compromise when bounced, forced the complainant to again initiate proceedings under Section 138 of the Negotiable Instrument Act. As there was no adjudication in the previous proceedings, the subsequent proceedings were not barred simply on the ground that the cheques were issued in lieu of a compromise 7. Thus, in view of the findings returned hereinabove, the appeals are allowed. Impugned judgments dated 31.10.2008, passed by the Court of learned Chief Judicial Magistrate, Solan, H.P. in Case No. 5/3 of 2005 and Case No. 84/10 of 2005 are set aside. The Complaints are ordered to be revived and restored to their original numbers. Learned Trial Court is directed to adjudicate upon the same in accordance with law. Impugned judgments dated 31.10.2008, passed by the Court of learned Chief Judicial Magistrate, Solan, H.P. in Case No. 5/3 of 2005 and Case No. 84/10 of 2005 are set aside. The Complaints are ordered to be revived and restored to their original numbers. Learned Trial Court is directed to adjudicate upon the same in accordance with law. It is made clear that this Court has not made any observation on the merit of the case and the Complaints shall be adjudicated upon by the learned Trial Court on their own merit. Parties are directed to appear before the learned Trial Court on 27th May, 2019. Registry is directed to forthwith return back the record of the case to the learned Trial Court. Cr. MP No. 1413 of 2018 in Cr. Appeal No. 790 of 2008 Cr. MP No. 1412 of 2018 in Cr. Appeal No. 791 of 2008 8. As agreed, these applications are disposed of, with liberty to the applicants to move similar applications before the learned Trial Court.