Anurag Sharma vs S. Nishan Singh

Hon''ble Servesh Kumar Gupta, J.—By way of this application, moved u/s 482 Cr.P.C., the prayer has been advanced to quash the order of cognizance dated 1.2.2007 passed by learned Additional Chief Judicial Magistrate, Haldwani, District Nainital in criminal complaint case No. 354 of 2007, S. Nishan Singh Vs. Anurag Sharma. The prayer has also been made to quash the entire proceedings of the said complaint case, instituted u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act" for brevity).

Having heard the learned counsel for the parties, it appears that the petitioner issued a Cheque on 4.12.2006, drawn from his banker ICICI Bank, worth Rs. 2.40 lacs, in consideration of the prospective purchase of some piece of land from Gurbachan Singh (father of the complainant Nishan Singh). At the time of issuing the Cheque No. 986160, an unregistered agreement to sale was executed regarding the Bhumidhari land, situated in village Sitapur, Tehsil Haldwani, District Nainital bearing Khata No. 13 area 6 Bigha. This land was agreed to be sold at the rate of Rs. 4.00 lacs per Bigha to Anurag Sharma.

Soon after the execution of this unregistered agreement to sale, Anurag Sharma came to know that the property, in question, was already mortgaged by Gurbachan Singh on 4.10.2006 and 23.11.2006 in favour of some Bank, and that has been shown by filing the copy of Khataunis, which have been annexed as annexure 4 to the petition. So, Sri Sharma issued the instructions to his banker for "stop payment". In compliance of the directions of the account holder (Sri Sharma), the Bank accordingly, stopped the payment of the impugned Cheque when the same was presented for encashment. The complainant sent a notice on dated 19.12.2006 u/s 138(b) of the Act and thereafter, filed the complaint case No. 354 of 2007 in the court of Magistrate, presenting all the relevant documents. The Magistrate, having gone through the contents along with the papers filed with the complaint, took cognizance and summoned the petitioner to stand trial for the offence of Section 138 of the Act, where against this petition has been filed.

It has been argued on behalf of the petitioner that the provisions of Section 138 of the Act are not attracted in the case in hand, inasmuch as, the same are applicable only when the Cheque is issued to discharge some "debt or other liability", as has been envisaged in the ''Explanation'' given u/s 138 of the Act. This explanation further defines the term "debt or other liability", which means a legally enforceable debt or other liability. It has been argued that the payment of the amount of cheque was not a legally enforceable debt or other liability, because the same was issued towards the sale consideration of the piece of land owned by Gurbachan Singh through an unregistered agreement to sale, and as per Section 17 r/w Section 47 of the Registration Act, 1908, for transfer of an immovable property, the agreement must have been registered and that agreement, in order to be a valid contract, should be a bilateral one, while this agreement to sale (Annexure 3 to the petition) is the unilateral one, bearing the signature of Gurbachan Singh only and not of the petitioner. Fortiori, the property in question was already mortgaged by the owner of the land in favour of the Bank prior to entering into agreement on 4.12.2006 and this fact has been admitted by learned counsel of the respondent, nay adverted in the endorsement made by the revenue authorities in the concerned Khataunis (Annexure 4 to the petition). It is also admitted that at the time of entering into agreement or even thereafter, the mortgage was never redeemed from the Bank to enable Sri Gurbachan Singh to honour the terms of the agreement, which he entered into. Thus, all these facts are enough to highlight that the amount of cheque was not in the form of ''payment of a legally enforceable debt or other liability''.

Learned counsel of both the parties have cited a number of precedents in support of their respective arguments, however this Court does not feel it necessary to burden this judgment by referring all those precedents of the Hon''ble Apex Court, inasmuch as, the facts and law, on the point of determination, are very clear. The above controversy does not pertain to the question of facts only, but the precise question of law is also involved in the matter, as has been dealt with hereinabove. So, this petition deserves acceptance.

Accordingly, the C482 application is allowed. Impugned order of cognizance dated 1.2.2007 and also the proceedings of criminal complaint case No. 354 of 2007, S. Nishan Singh Vs. Anurag Sharma, pending in the court of Addl. CJM, Haldwani, District Nainital, are hereby quashed.