Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 112 (ALL)

Kutumb Marketing Company v. State of U. P.

2024-01-10

MANOJ BAJAJ

body2024
JUDGMENT : Manoj Bajaj, J. 1. Applicants have filed this application under Section 482 Code of Criminal Procedure for quashing of Complaint Case No. 3955 of 2015; titled Vinay Kumar Mittal vs. M/s Kutumb Marketing Company and another, filed by complainant-opposite party no. 2, under Section 138 Negotiable Instruments Act, 1881. Briefly, the facts leading to the application are that complainant-Vinay Kumar Mittal brought a complaint under Section 138 Negotiable Instruments Act, 1881 against M/s Kutumb Marketing Company, a Proprietorship Firm represented by applicant no. 2 namely Smt. Meetu wife of Paritosh Srivastava, with the averments that the applicant no. 2 is Proprietor of the applicant no. 1-Firm and is responsible for the conduct of business of the Firm, and the complainant has given a office bearing No. 608 S.L. Tower, Alpha Commercial Belt Greater Noida, District Gautam Budh Nagar, to the accused on rent. The accused never paid the rent in time and for the last two years, there is no rendition of the rent account, and whenever the official of the complainant visits the accused-Firm for demand of rent, he is scolded, and seldom some rent is paid by way of cheques, but the said cheques never cleared on single presentation. On 7th August, 2015, the accused issued a cheque bearing No. 030102 for a sum of Rs. 20,000/-, drawn at Bank of Maharashtra Branch S.L. Tower, Shop No. 3, Alpha-I, Commercial Belt Greater Noida, District Gautam Budh Nagar from account bearing No. 60034507037, in favour of the complainant to clear the debt of rent. The said cheque was presented by the complainant with his bankers, namely, Citizen Cooperative Bank Ltd., affiliated to HDFC Bank for credit in his Saving Account No. 2050, but the same was returned dishonoured through memo dated 13.10.2015. As per the memo of the bank, the cheque was returned with the remarks "Payment Stopped" by the drawer. The complainant issued a statutory notice dated 26.10.2015 through Sri Jabar Singh Advocate by registered A.D. dated 27.10.2015 and demanded the payment of cheque amount within 15 days from the date of the receipt of the notice, but neither any payment was made nor any other information was received from the accused. The complainant issued a statutory notice dated 26.10.2015 through Sri Jabar Singh Advocate by registered A.D. dated 27.10.2015 and demanded the payment of cheque amount within 15 days from the date of the receipt of the notice, but neither any payment was made nor any other information was received from the accused. The complainant filed a complaint against the accused for alleged commission of offence punishable under Section 138 Negotiable Instruments Act, 1881 and also appended the copies of the original cheque dated 7.8.2015, bank return memo, legal notice dated 26.10.2015 and the photo copy of the postal receipt dated 27.10.2015 along with the affidavit. 2. Thereafter, the statement of the complainant was recorded on 29.7.2016 under Section 202 Cr.P.C. by the Judicial Magistrate, Gautam Budh Nagar and after examining the material on record found that prima facie the alleged commission of offence punishable under Section 138 Negotiable Instruments Act, 1881 is made out, and vide order dated 24.1.2017 process against the applicants/accused was issued. 3. Feeling aggrieved against this, the applicants have approached this Court by way of this petition for quashing of the criminal proceedings. 4. Learned counsel for the accused has argued that the complainant has concealed material facts in the impugned complaint (Annexure-2) and did not disclose that before the dishonour of cheque in October, 2015, previously on two occasions the cheque was presented by him on 6.8.2015 and 19.8.2015 and on both occasions it was dishonoured. Learned counsel for the applicants has argued that the cheque is dated 7th August, 2015, but the complainant had presented it before his bankers on 6th August, 2015 and when the bankers of the accused deducted dishonour charges of Rs. 171/-from their account, at that stage, the applicants contacted the complainant and issued another cheque bearing no. 030103 for a sum of Rs. 20,000/-and the said amount was withdrawn by the employee of the complainant, namely, Munna and receipt (Annexure-17) in this regard was also issued. 5. According to the learned counsel for the applicants, since the liability, if any, attached to the cheque no. 030102 stood discharged to the satisfaction of the complainant, therefore, the impugned complaint would not be maintainable. 20,000/-and the said amount was withdrawn by the employee of the complainant, namely, Munna and receipt (Annexure-17) in this regard was also issued. 5. According to the learned counsel for the applicants, since the liability, if any, attached to the cheque no. 030102 stood discharged to the satisfaction of the complainant, therefore, the impugned complaint would not be maintainable. In support of his arguments, learned counsel has drawn the attention of the Court to the pleadings contained in paragraph 11 of the petition and the relevant annexures i.e. the two cheques, Annexures 3 and 16, respectively, and the receipt dated 18th August, 2015 signed by Munna (Annexure 17). 6. Learned counsel has further argued that the complainant has also not disclosed in his complaint about the reply dated 5th November, 2015 (Annexure 10) sent by the applicants to the statutory notice dated 26.10.2015 (Annxure 7), wherein it is also specifically highlighted that a sum of Rs. 20,000/- stood paid to Munna against the liability of cheque bearing no. 030102 and with this payment, the rent payable upto the month of July, 2015 stood cleared. Sri Rajiv Lochan Shukla, learned counsel for the applicants has pointed out that the averments contained in paragraph 11' of the petition have not been specifically denied by the opposite party no. 2 in their counter affidavit dated 24.06.2017, therefore, in this background, it is apparent that the impugned complaint is based upon the distorted facts and the same is nothing, but an abuse of the process of law. He prays that the impugned complaint be quashed. 7. Though the opposite party no. 2 has filed the counter affidavit, but today no one has appeared on behalf of the complainant. 8. Learned counsel for the applicants has been heard and with his assistance, case file has been perused carefully. 9. After hearing the learned counsel for the applicants and considering his submissions, this Court finds that as far as the relationship of the accused and the complainant as tenant and landlord is concerned, the same is not disputed and even the issuance of subject cheque dated 7th August, 2015 bearing No. 030102 for a sum of Rs. 20,000/- in favour of the landlord-complainant is also admitted. In this regard, reference can be made to the reply dated 5th November, 2015 allegedly sent by the applicants to the complainant. 20,000/- in favour of the landlord-complainant is also admitted. In this regard, reference can be made to the reply dated 5th November, 2015 allegedly sent by the applicants to the complainant. The applicants have mainly relied upon their stand of having discharged the liability attached to the cheque no. 030102 dated 7th August, 2015, as after its dishonour, the said amount of Rs. 20,000/-, was paid to the landlord through a bearer cheque No. 030103, which was encashed by one Munna allegedly an employee of the landlord. 10. During the course of hearing, Sri Rajiv Lochan Shukla, learned counsel for the applicants vehemently argued that on 6th August, 2015, the cheque bearing no. 030102 was presented which is a day before the date contained on the cheque and when the sum of Rs. 171/- for its dishonour was deducted on 7.8.2015 by the bankers, applicants came to learn about it and contacted the landlord and also made the payment of Rs. 20,000/- through bearer cheque bearing no. 030103 on 18.8.2015. Strangely, if the liability attached to the cheque in question stood discharged as claimed by the applicants, on 18.8.2015 then why the cheque was again dishonoured on 19th August, 2015 has not been explained by the applicants, as the complaint is founded upon the subsequent dishonour of the same cheque in October, 2015. Notably, in the reply dated 5.11.2015 sent by the applicants to the complainant, there is no mention either regarding premature presentation of the cheque on 6th August, 2015 or any averment relating to the alleged unjustified presentation of the cheque on 19th August, 2015, i.e. after payment of a sum of Rs. 20,000/- to the complainant. Besides, no explanation has been offered as to why at the time of payment of Rs. 20,000/- to the complainant, the return of the cheque was not requested. Also the payment of the cheque in question was stopped by applicants much after the alleged payment in cash to the complainant was made, and concededly, no intimation in this regard was sent to the applicants. 11. Apart from the above, a perusal of the vernacular of the photo copy of the receipt dated 7th August, 2015 (Annexure-17) would show that it is issued by Munna, and it also contains the shop number as 608 with an amount mentioned against it as Rs. 15,908/- till June, 2015. 11. Apart from the above, a perusal of the vernacular of the photo copy of the receipt dated 7th August, 2015 (Annexure-17) would show that it is issued by Munna, and it also contains the shop number as 608 with an amount mentioned against it as Rs. 15,908/- till June, 2015. Even the applicants have mentioned in paragraph 13 of the application that the sum of Rs. 15,908/- was also paid to the complainant as maintenance charges, thus, the stand of the applicants that a sum of Rs. 20,000/- was paid against the cheque dated 7th August, 2015 cannot be accepted for want of evidence, particularly when in the counter affidavit, the complainant has specifically denied the receipt of cash amount of Rs. 20,000/- as alleged by the applicants. 12. Consequently, in view of the above background, this Court has no hesitation in holding that the ground raised by the accused-applicants for quashing of the impugned complaint are based upon disputed facts, and as the instrument in question carries a presumption that it was issued for discharge of debt or other liability, therefore, the applicants are required to rebut the same by leading their defence evidence. 13. At this stage, learned counsel for the applicants has pointed out that the applicants have also moved an application under Section 340 Cr.P.C. against the landlord-opposite party no. 2 for filing forged letters at pages 11, 12 and 13 of the counter affidavit, which are written by the landlord to the applicant no. 2 relating to the extension of lease agreement, and on these letters, the signatures of the applicant no. 2 with the stamp has been forged. The document is being questioned only on the ground that it contains the signature and stamp of applicant no. 2 which is not possible, but admittedly, there is no denial of the contents and substance of these letters, therefore, prima facie, it does not seem to be a case of any forgery. Thus, no interference is called for in the application under Section 340 Cr.P.C. also. 14. No other argument has been raised. 15. Resultantly, without meaning any expression of opinion on the merits of this case, this Court is not inclined to exercise the inherent powers under Section 482 Cr.P.C and the application is hereby dismissed. 16. Thus, no interference is called for in the application under Section 340 Cr.P.C. also. 14. No other argument has been raised. 15. Resultantly, without meaning any expression of opinion on the merits of this case, this Court is not inclined to exercise the inherent powers under Section 482 Cr.P.C and the application is hereby dismissed. 16. However, it is made clear that it shall be open for the applicants to lead evidence before the trial court in support of the defence raised herein.