Janardan vs Anil Sharma

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. for quashing the Criminal Case No. 3135/2008 (Anil Sharma Vs. Janardan Tripathi), pending in the Court of JMFC, Gwalior. The brief facts giving rise to this petition are that the petitioner had purchased the land for consideration of Rs. 37 Lacs from Ravindra, Mahesh, Balveer, Shivram and Halke on 23.03.2007 in the name of his wife Smt. Sunita Tripathi. Out of this land, the petitioner''s wife sold two plots of the land to complainant Anil sharma vide registered sale deed dated 28.03.2007. Since the Tahsildar of the area declared the land to be government land, therefore, it was entered as government land on 03.08.2007. In view of this, petitioner has returned the consideration and gave a cheque of Rs. 2 Lac on 20.12.2007 to the respondent/complainant. The petitioner assured the respondent/complainant that he shall get the payment of amount, however when cheque submitted for encashment it was dishonoured and respondent/complainant could not get the payment. Thereafter, respondent/complainant sent a registered notice through his advocate. The petitioner with the connivance of the postman got returned the notice as unserved. However, the notice sent under UPC has been served on the petitioner but petitioner neither replied the notice nor returned the cheque amount. Therefore, the respondent/complainant filed the complaint u/s. 138 of the Negotiable Instrument Act. Being aggrieved, petitioner has filed this petition.

Learned counsel for the petitioner submits that the wife of the petitioner has executed the registered sale deed in favour of the respondent, which still exists in the eyes of law, therefore, the respondent/complainant is only entitled either to the land of which he became owner by the said sale deed or he can claim the amount, which he has received by the cheque. As the respondent has already received consideration by way of cheque in turn of plot vide sale deed, therefore, continuation of proceedings against the petitioner is abuse of process of law, hence it is prayed that the proceedings of Criminal Case No. 3135/2008 pending in the Court of JMFC, Gwalior be quashed.

Learned counsel for the respondent/complainant has submitted that when the said cheque which has been given by the petitioner was presented in the bank and the same has been dishonoured, hence the proceedings cannot be quashed.

In order to appreciate the rival submissions of the learned counsel for the parties, I have perused the record. 6

From perusal of the copy of the sale deed it appears that Smt. Sunita Tripathi, W/o. Shri Janaradan Tripathi had executed the sale deed of the plot No. 5 & 11 situated at Village Loharpur for consideration of Rs. 1,53,500 in favour of respondent/complainant.

From perusal of the agreement dated 09.09.2007 it appears that it was agreed between Smt. Sunita Tripathi and respondent/complainant that the plot purchased by the respondent/complainant vide sale deed dated 03.04.2007 has been returned to Smt. Sunita Tripathi in lieu of it cheque No. 442606 of Rs. 2 Lac has been given to the respondent/complainant. It is also mentioned that the possession was handed over to Smt. Sunita Tripathi and the respondent/complainant will not claim any right on the said plot. It was also agreed that if the cheque is dishonoured then Smt. Sunita Tripathi shall be liable. The respondent/complainant has also sworn affidavit in connection with the agreement.

Thus, from the perusal of the agreement prima facie it becomes clear that the respondent/complainant has handed over the possession of the plot as well as sale deed in respect of which sale deed was executed by the wife of the petitioner. In such circumstances, as per agreement the respondent/complainant is entitled to refund of the amount of consideration.

The submission of the learned counsel for the petitioner that the sale deed is still existing in the eyes of law, therefore, the respondent is not entitled for the cheque amount in view of the agreement dated 09.09.2007. This submission cannot be accepted because respondent/complainant has handed over the possession of the land as well as the registered sale deed and it was agreed that he should not claim any right in the said plot, therefore, he is entitled to get the refund of the consideration as agreed. The petitioner gave the cheque as agreed between the respondent/complainant and petitioner''s wife. The cheque has been dishonoured, therefore, prima facie the complaint preferred by the respondent/complainant discloses the commission of offence u/s 138 of Negotiable Instruments Act, 1881, in such circumstances, it is very difficult to accept the submissions of the learned counsel for the petitioner that the continuation of the proceedings amount to abuses of process of law.

The Hon''ble Apex Court in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, making reference of the following cases:-

(i) R.P. Kapur Vs. The State of Punjab, ;

(ii) State of Karnataka Vs. L. Muniswamy and Others,

(iii) Chandrapal Singh and Others Vs. Maharaj Singh and Another,

(iv) Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others,

(v) State of Haryana and others Vs. Ch. Bhajan Lal and others,

(vi) Janata Dal Vs. H.S. Chowdhary and Others,

(vii) G. Sagar Suri and Another Vs. State of U.P. and Others,

(viii) Roy V.D. Vs. State of Kerala,

(ix) Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, and

(x) Indian Oil Corporation Vs. NEPC India Ltd. and Others,

has observed in para 23 and 24 as under:-

This court in a number of cases has laid down the scope and ambit of courts powers u/s 482, Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power u/s 482, Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

Inherent powers u/s 482, Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

From the aforesaid analysis it is clear that complaint prima facie discloses the commission of offence u/s. 138 of the Negotiable Instrument Act therefore no case is made out for exercise the inherent power of this Court. Petition is devoid of merits and is liable to be dismissed.

Consequently, petition is dismissed.