Jai Gopal Khanna vs J.K.Engineering Works, Indl.Area, Jalandhar

A.S. Nehra, J.

Jai Gopal Khanna, Proprietor M/s Eastern Engineering Corporation, Faridabad, has filed this petition under Section 482 of the Code of Criminal Procedure ( in short the Code), for quashing the complaint under Sections 138 and 142 of the Negotiable Instruments Act, 1981 (hereinafter referred to as the Act ), and the summoning order dated 3.5.1993 passed by the Judicial Magistrate Ist Class, Jalandhar (Annexure P7).

Briefly stated the facts of the case are that the M/s Eastern Engineering Corporation has taken on rent an Industrial shed plot No.101, Sector 6, Faridabad from M/s J.K. Engineering Works, Industrial Area, Jalandhar, at a monthly rent of Rs. 810/ including all taxes. The landlord has been residing at Jalandhar and visiting Faridabad, on one pretext or the other to harass the petitioner in order to get the premises vacated. The respondent had filed a writ petition at Faridabad against the petitioner, which was dismissed by the Rent Controller, Faridabad. Thereafter, the petitioner sent a cheque of Rs.810/ dated 8.12.1992 drawn on UCO Bank, NIT Faridabad towards the rent for the month of December, 1992 but this cheque was returned to the respondent with the remarks ''Referred to Drawer''. Thereafter, the respondent issued a notice on 21.1.1993 under Section 138 of the Act stating therein that the cheque of Rs.810/ was dishonoured due to insufficiency of funds. On receipt of notice, the petitioner immediately sent reply enclosing a Bank Draft for Rs.810/ bearing No. 520784 drawn on the UCO Bank, Jalandhar against the dishonoured cheque of Rs.810/ through registered letter dated 1.2.1993. Copy of the reply sent is annexure P2. The registered letter sent by the petitioner was received back undelivered and thereafter the petitioner again sent the same draft through another registered letter to the respondent who refused to accept the registered cover on 15.2.1993. A photocopy of the registered cover is Ex.P5.

Notice of this petition was given to the respondent who filed reply alleged therein that the contents of para 1 needs no reply; that contents of para 2 are admitted to the extent that the respondent is residing at Jalandhar. The rest of the contents of this para were vehemently denied. In reply to para No.3 he submitted that the contents of this para are futile and meaningless and as such require no reply. In reply to para No.4 it has been stated that the contents of this para are admitted to the extent of sending the cheque and dishonouring of the same. The rest of the contents of this para are denied and it is submitted that the cheque was returned due to insufficiency of funds in the account of the petitioner. In reply to para No.6 of the petition, it is submitted that the contents of this para except the filing of the complaint are denied. It is further submitted in reply to para No.6 that the petitioner has unnecessarily indulged in creating some sort of fabricated record which is meaningless and that the petitioner failed to make good the payment of the dishonoured cheque within 15 days of the receipt of the legal notice as sent out in Section 138 of the Act and thus he is liable to be proceeded against and punished thereunder. He further stated that the documents sought to be relied upon by the petitioner require to be proved during the course of his defence at trial and as such cannot be relied upon here at this stage. It is further submitted that even otherwise, no additional material beyond what is there on the record of the trial court can be looked into under Section 482 of the Code and as such the petitioner can only set out his defence referred to in this para during the trial and not in the instant proceedings. In reply to para 7 of the petition the respondent further stated that the contents of the para are frivolous as the banker is not required to be examined during preliminary evidence. It is further submitted that the certificate issued by the Bank sought to be relied upon by the petitioner requires to be proved under the Indian Evidence Act and is not per se admissible. The reply of the respondent to para No.8 of the petition reads as under :

" That the contents of this para are admitted to the extent of the passing of the summoning order. While denying the rest of the para it is submitted that the summoning order was passed by the learned Magistrate after due consideration of the material on record in accordance with law."

I have heard the leaned counsel for the parties and have perused the record with their help.

The learned counsel for the petitioner Mr.Harsh Aggarwal stated at the Bar that he is prepared to pay the amount in question in court to the counsel for the respondent Mr.S.S. Narula, who in turn stated that he has no instructions to receive any amount from the petitioner in the court. The learned counsel for the petitioner then contended that no offence under Section 138 of the Act is made out against the petitioner as the certificate issued by the Bank authorities in favour of the petitioner shows that on 8.12.1992, an amount of Rs.2382.75 paise was balance in the account of the petitioner. He further submitted that the complaint and the summoning order are liable to be quashed. He further contended that the notice issued by the respondent is dated 21.1.1993, that in response to the notice, the petitioner immediately sent a reply along with a bank draft through registered letter dated 1.2.1993 which was not received by the respondent and the same was returned to the petitioner; that again, the petitioner sent the same draft though another registered letter which was refused by the respondent on 15.2.1993 and in support of his contention he referred to annexures P2, P5 and P8. The learned counsel for the petitioner further contended that earlier also, the respondent filed ejectment petition which was dismissed by the Rent Controller, Faridabad and thus he is bent upon to harass the petitioner on one pretext or other.

After hearing learned counsel for the parties, I find force in the contentions raised by the learned counsel for the petitioner. In the instant case only an amount of Rs.810/ is involved. Admittedly, the litigation between the landlord and the tenant is going on for many years. The landlord had filed an ejectment petition before the Rent Controller, Faridabad, which was dismissed. Twice drafts were sent to the respondent through registered letter but the same were not accepted by the respondent intentionally because he wanted to file a false complaint against the petitioner. Moreover, the averments made by the petitioner in paras 6 and 7 of the petition, have not been denied by the respondent knowingly and his reply to those paras is evasive which shows that he has filed a false complaint against the petitioner to harass him. Thus, no offence under Section 138 of the Act has been made out against the petitioner.

In view of the above discussion, this petition is allowed. The complaint annexure P6 and the summoning order dated 3.5.1993 (annexure P7) are hereby quashed.