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2019 DIGILAW 744 (RAJ)

Nishant Mathur v. State of Rajasthan, Through PP

2019-03-06

KANWALJIT SINGH AHLUWALIA

body2019
JUDGMENT 1. Instant petition has been preferred under Section 482 Cr.P.C. praying therein that the order dated 08.01.2019 passed by the Court of Special Metropolitan Magistrate (N.I. Act Cases) No. 10, Jaipur Metropolitan Jaipur in Criminal Complaint No. 36/2019, titled as Dr. Devendra Kumar Garg v. Nishant Mathur , be set aside, as the trial Court has wrongly taken cognizance for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner. 2. Mr. Rajendra Prasad, ld. Senior Advocate appearing for the petitioner, has submitted that Smt. Sudha Mathur, the mother of petitioner - Nishant Mathur had executed an agreement to sell in favour of the complainant-respondent No. 2 - Dr. Devendra Kumar Garg. The ld. Senior Advocate has further submitted that since the loan of the L.I.C. Housing Finance Limited was outstanding in terms of the agreement to sell, the sale-deed could not be executed and the compromise dated 20.10.2018 was executed between the parties. The ld. Senior Advocate has contended that in terms of the compromise dated 20.10.2018 (Annexure-5), undated cheques were issued in favour of the complainant by the petitioner and his family members. The ld. Senior Advocate has further contended that as per agreement to sell, all cheques were to be presented after 30.04.2019, the date incorporated in the compromise relied by the petitioner as Annexure-5. The ld. Senior Advocate has pleaded that it is specified in the compromise that the cheques were to be presented, if there is a breach on the part of the signatories to the compromise. The ld. Senior Advocate has further pleaded that the cheques were undated and the same could not be presented by the complainant on or before 30.04.2019. The ld. Senior Advocate has submitted that on or before 30.04.2019 the cheques were not be construed towards the payment of legally enforceable debt or consideration. Lastly, ld. Senior Advocate has contended that in the notice issued by the petitioner (Annexure-9) and in the complaint (Annexure-11), the complainant has made a reference to the compromise dated 20.10.2018. 3. I have heard ld. Senior Advocate appearing for the petitioner. 4. The question arises as to what were the terms of compromise. The compromise relied by ld. Senior Advocate appearing for the petitioner is not per-se admissible. 3. I have heard ld. Senior Advocate appearing for the petitioner. 4. The question arises as to what were the terms of compromise. The compromise relied by ld. Senior Advocate appearing for the petitioner is not per-se admissible. Attesting witness or executor of the compromise is required to prove the compromise before the trial Court, whether the complainant has relied upon the same compromise or not is a disputed question of fact, which cannot be determined in a petition filed under Section 482 Cr.P.C. 5. Consequently, the present petition is disposed of, with liberty to the petitioner to urge before the trial Court at the time of service of notice of accusation that the compromise relied by the complainant with the complaint, be taken into consideration to arrive at a conclusion that on or before 30.04.2019 the compromise could not be enacted upon and the cheques could not be presented to the banker, therefore, the proceedings against the petitioner be dropped. 6. The ld. Senior Advocate appearing for the petitioner contends that the next fixed date before the trial Court is 07.03.2019 i.e. tomorrow. 7. After hearing ld. Senior Advocate appearing for the petitioner, it is, hereby, ordered that in case, the petitioner files an application for discharge on above grounds before the trial Court, the said application shall be decided by the trial Court within a period of three weeks from the date of filing of the application. 8. Needless to say, the trial Court shall pass a detailed speaking order dealing with the contentions raised, on the application of the petitioner filed for discharge, after hearing all concerned.