Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 995 (HP)

Yusuf Ali v. Madan Lal

2019-07-22

VIVEK SINGH THAKUR

body2019
JUDGMENT : Vivek Singh Thakur, J. These petitions are being decided together by this common judgment, as common question of law and fact is involved in all these petitions. 2. These petitions have been filed for quashing of complaints filed by respondent under Section 138 of Negotiable Instruments Act (herein after referred to as the "Act" for short) and criminal proceedings arisen thereof, pending consideration in the Court of learned Chief Judicial Magistrate, Sirmaur at Nahan. It is undisputed fact that petitioner has purchased property from the respondent/complainant and for payment of balance amount of sale consideration, he has issued three cheques, Whether the reporters of the local papers may be allowed to see the Judgment? Yes amounting to Rs.50,000/- each, which have been dishonored for insufficient funds in the bank account of petitioner/accused. 3. After complying with the mandatory provisions of the Act for filing the complaint, complainant/respondent has filed three complaints under Section 138 of the Act with respect to three cheques issued by the petitioner/accused. 4. Defence of petitioner/accused is that after purchasing the property by him from respondent/complainant, son of respondent/complainant has filed a suit claiming right on the property, wherein the respondent/complainant as well as petitioner/accused are also defendants. According to him, the title of the property is under cloud and unless it is cleared, he is not liable to pay the balance consideration amount and therefore, he is not liable to pay any amount to the respondent/complainant during pendency of suit wherein dispute with respect to title of the property is under challenge. According to him, he on account of misrepresentation made by complainant had parted with huge amount of money whereas he is not able to enjoy the property in question because of pending litigation. Further plea of the petitioner/accused is that respondent/complainant has made a false declaration in clause 6 of the sale deed, wherein he has declared that the title of the vendor (respondent/complainant) in the property is clear, free from all encumbrances and there is no defect in the title and further that in case of any defect in the title of the vendor (respondent), which may crop up at any time for any reasons whatsoever presently or in future, the vendor had undertaken to indemnify the vendee (petitioner/accused) to the extent of defect so arises in the title of the sold property. 5. 5. It is plea of respondent/complainant that there is no defect in the title and not only the property stands transferred to the petitioner/accused in revenue papers, but also the petitioner/accused is enjoying the property as the possession thereof has already been delivered to the petitioner/accused and filing of the suit by son of respondent/complainant is beyond the control of respondent/complainant and there is no misrepresentation on behalf of respondent/complainant with respect to title and declaration made in clause 6 of the sale deed. It is further submitted by learned counsel for the respondent/complainant that stage for invoking clause 6 of the sale deed is not arrived yet, as the filing of suit does not confer any title on the son of complainant/respondent. It is also submitted by learned counsel for the respondent/complainant that in Civil Suit filed by son of respondent/complainant, the suit is being defended by respondent/complainant by claiming that the sale deed executed by him is legal and valid sale deed, as such the stand is favorable to the petitioner/accused and respondent/complainant is not acting contrary to the interest of the petitioner/accused. 6. Learned counsel for the respondent/complainant has referred to a pronouncement of Apex Court in case titled Ripudaman Singh Vs. Balkrishana, 2019 4 SCC 767 , wherein facts and circumstances and clause 4 of the agreement to sell is identical, except that in present case clause 6 of the sale deed speaks about indemnification of vendee to the extent of future defect in the title of the sold property and in the case decided by the Apex Court clause 4 of the agreement provides that payment of cheques would be after resolution of such dispute with respect to title of the property. In the said pronouncement, the Apex Court has reversed the findings returned by the High Court wherein, quashing the complaint, it was held by the High Court that under the term clause 4 of the agreement to sell the cheques could not have been presented for payment, as according to the High Court, the chques were having not been issued for creating any liability or debt for payment of balance consideration and the purchaser at that time did not owe any money to the complainant. The Apex Court disagreeing with the reasoning of the High court has held that cheques were issued under and in pursuance of agreement to sell and though it is well settled that an agreement to sell does not create any interest in immoveable property, it nonetheless constitutes a legally enforceable contract between the parties to it and a payment which is made in pursuance of such an agreement is hence a payment made in pursuance of a duly enforceable debt or liability for the purpose of Section 138 of N.I. Act. The Apex Court answering the question as to whether there was a dispute as contemplated in clause 4 of the agreement to sell which obviated the obligation of the purchaser to honor the cheque which was furnished in pursuance of the agreement to sell to the vendor, cannot be the subject matter of a proceeding under Section 482 Cr.P.C but is a matter to be determined on the basis of the evidence which may be adduced at the trial and ultimately the Apex Court has set aside the quashing of complaint and had ordered the revival thereof. 7. In present case, respondent/complainant is on better footings, as it is not a case of an agreement to sell, but in present case sale deed has been executed and property in question, in revenue papers as well as physically, has been transferred to the petitioner/accused and he is enjoying the property. Therefore, applying the ratio of law laid down by the Apex Court, defect in the title, which, if any, is yet to be established in the Civil Suit filed by the son of respondent/complainant, cannot be a ground for quashing the complaint pending before learned Chief Judicial Magistrate, Sirmour at Nahan invoking jurisdiction of this Court under Section 482 Cr.P.C. 8. In view of above discussion, I find that no valid and plausible ground is made out for quashing of complaints. Therefore, the petitions are dismissed along with pending applications, if any. In view of above discussion, I find that no valid and plausible ground is made out for quashing of complaints. Therefore, the petitions are dismissed along with pending applications, if any. It is clarified that opinion with regard to merits of the complaints has not been expressed herein above, the findings returned herein above are yet to be construed to have been made only with reference to decision of present petitions filed under Section 482 Cr.P.C. for quashing of complaints and rival contentions of parties with respect to merits of the case are to be determined and decided by the trial Court in accordance with law on the basis of material adduced before him.