M/s. M.H. One TV Network Limited and Another vs Jogender Kumar

Sabina, J.—Petitioners have filed this petition u/s 482 of the Code of Criminal Procedure, 1973 seeking quashing of the Criminal Complaint No. 142 dated 05.10.2009 (Annexure P-4) under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (in short Act) and all the subsequent proceedings arising therefrom including summoning order dated 17.02.2011 (Annexure P-5). Learned counsel for the petitioners has submitted that the respondent was working with the petitioners and was being paid as per the news items brought by him. Respondent was inadvertently issued the cheque in question and was asked to accept the amount in question by way of another cheque. However, respondent presented the cheque in question for encashment with the bank. The cheque was dishonoured and the respondent served a notice through his counsel. In reply to the said notice, petitioners sent a demand draft dated 10.09.2009 with regard to the cheque amount. However, the said notice (Annexure P-2) was not received by the respondent. Respondent filed the complaint in question. Trial Court issued the summoning order dated 17.02.2011 (Annexure P-5) after recording preliminary evidence led by the respondent. Vide order dated 17.06.2011 (Annexure P-6), petitioners were ordered to be summoned for 13.09.2011. However, the case was taken up by the Trial Court on 12.09.2011 and petitioners were ordered to be summoned through non-bailable warrants of arrests. Challenging the said order, petitioner No. 2 preferred a revision petition. During the pendency of the revision petition, the cheque amount in question was paid to the respondent by way of a demand draft. However, the respondent submitted that he wanted to continue with the criminal proceedings. The Court of Revision referred the matter to mediation vide order dated 13.10.2011 (Annexure P-11) to enable the parties to settle all their other disputes. Hence, this petition was filed. Learned counsel has further submitted that since the cheque amount in question has already been paid to the respondent, continuation of criminal proceedings against the petitioners would be nothing but abuse of process of law.

None has appeared on behalf of the respondent despite service.

In the present case, respondent has filed the complaint in question against the petitioners u/s 138/142 of the Act with regard to dishonour of cheque dated 15.04.2009 in the sum of Rs. 15,000/-. Annexure P-1 is the copy of notice issued by respondent to the petitioners with regard to dishonour of cheque in question. Annexure P-2 is the copy of the reply sent by the petitioners to the said notice along with the demand draft dated 10.09.2009. Photocopy of the said demand draft in the sum of Rs. 15,000/- in favour of the respondent has been placed on record as Annexure P-3. However, the said reply to the notice as well as the demand draft were not received by the respondent. Respondent filed the complaint in question on 05.10.2009 u/s 138/142 of the Act. Respondent led his, preliminary evidence, in support of his complaint. Vide order dated 17.02.2011, petitioners were ordered to be summoned to face the trial. Annexure P-6 is the order passed by the Trial Court dated 17.06.2011 and the same reads as under:-

Summons of accused not received back either served or unserved. In the interest of justice case is adjourned to 13.09.2011 for summoning of the accused through learned CJM, 30 Hazari Court, Delhi in view of Section 67 Cr.P.C. Dasti summons be given if so desired.

However, on 12.09.2011, following order was passed by the Trial Court:-

Summons of accused received back duly served. An application for issuing warrant of arrest against accused Mahinder Singh Batla moved. Heard. Keeping in view the facts mentioned in the application, the same is hereby allowed. Now accused be summoned through non bailable warrant for 05.12.2011 through DCP North West, Ashok Vihar, Delhi in view of Section 73 Cr. P.C.

Thus, although, the petitioners were ordered to be summoned for 13.09.2011 but the case was taken up on 12.09.2011 by the Trial Court and petitioners were ordered to be summoned through non-bailable warrants of arrest. Petitioner No. 2 filed a revision petition against order dated 12.09.2011. The order passed by the Court of Revision dated 13.10.2011 (Annexure P-11) reveals that during the pendency of the revision petition, draft with regard to cheque amount in question was handed over by the petitioners to the respondent. Respondent accepted the said draft without prejudice to his rights to pursue the complaint in question.

Since, none has appeared on behalf of the respondent despite service, the averments made by the petitioners in the petition remain unrebutted.

Thus, in the present case, it is evident that on receipt of notice by the petitioners, demand draft with regard to the cheque amount in question was sent along with the reply to the notice. However, the said reply was not received by the respondent but complaint in question was filed. Petitioners paid the cheque amount in question by way of draft to the respondent on the first date of appearance of the respondent in the Court of Revision. In these circumstances, continuation of criminal proceedings against the petitioners would not serve any useful purpose as they have already paid the cheque amount in question. In the facts and circumstances of the present case, it cannot be said that the petitioners had any criminal intention which would constitute an offence u/s 138 of the Act as at the very first instance, they had made an effort to pay the cheque amount in question to the respondent by way of draft. Accordingly, this petition is allowed. Criminal Complaint No. 142 dated 05.10.2009 (Annexure P-4) under Sections 138 and 142 of Act and all the subsequent proceedings arising therefrom including summoning order dated 17.02.2011 (Annexure P-5) are quashed.