Rajesh Sarvaiya vs Niki Chemical Industries

H.R. Panwar, J.—By the instant petition u/s 482 Cr.P.C., accused petitioner seeks quashing of criminal complaint filed by M/s Chemical Industries u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act of 1881'' hereinafter) being Criminal Original Case No. 1517/04 pending before Additional Chief Judicial Magistrate (Economic Offences), Jodhpur(for short ''the trial Court'' hereinafter).

I have heard learned Counsel for the petitioner. No one appears for the complainant-respondent though served.

It is submitted by learned Counsel for the petitioner that the petitioner issued cheques No. 390170, 390171, 390172 and 390173 of Rs. 2,00,000/- in favour of the complainant respondent. The cheuqes on being presented to the bank by the respondent were dihonoured and returned unpaid and thereafter a notice came to be given to the petitioner by the respondent as envisaged u/s 138 of the Act of 1881 requiring the petitioner to pay the cheque amount within 15 days from the date of receipt of notice. According to learned Counsel for the petitioner, the complainant stated in the complaint in para No. 6 that the notice was sent by the complainant through counsel on 09.10.2002 which was received by the petitioner on 14.10.2002. Thus, the petitioner was to pay the cheque amount within 15 days commencing from 15.10.2002. According to learned Counsel for the petitioner, the petitioner has paid the entire amount of Rs. 2 lacs by a banker''s cheque dt. 31.10.2002 vide Ex.P.2 and receipt thereof has been issued by complainant on 31.10.2002 stating therein that a sum of Rs. 2 lacs has been received by banker''s cheque in full and final settlement of all dues from the petitioner till today i.e., 31.10.2002 the date of receipt. The complainant himself in para No. 6 of the complaint stated about the payment having been made and received by the complainant and the only case set up by the complainant is that the payment was not made within the stipulated period in notice.

Learned Counsel for the petitioner has relied in decision of Hon''ble Supreme Court in K.R. Indira v. Dr. G. Adinarayana, 2004(1) CCC 232 (SC) wherein Hon''ble Supreme Court held that the legislative intent as evident from Section 138 of the Act is that if for the dishonoured cheque the demand is not met within 15 days of the receipt of the notice, the drawer is liable for conviction. If the cheque amount is paid within the above period or before the complaint is filed, the legal liability u/s 138 ceases to be operative and for the recovery of other demands such as compensation, costs, interest etc. separate proceedings would lie. If in a notice any other sum is indicated in addition to the amount covered by the cheque, that does not invalidate the notice.

In the instant case, before filing the complaint, indisputably the amount of cheques in question have been received by the respondent complainant.

In Nijjer Agra Foods Limited and Ors. v. Nasib Chand and Anr. 2004 (2) DCR 76, Delhi High Court held that once the payment against cheques made by way of demand drafts, liability qua these ceased to exist and therefore, the respondent therein was not entitled to present those cheques even if some amount or balance amount due from petitioner therein. In that case, the question came up before the Court was whether there was any liability of the petitioner towards the cheques in question or not. Merely because some amount or remaining balance payment was due from the petitioner does not mean that the respondent was entitled to recover those payments by virtue of cheques in question given by the petitioner therein as security which were replaceable by way of demand drafts.

Be that as it may, from the facts noticed above, in my view, since the payment has been made on 31.10.2002 before filling of the complaint, the legal liability ceased to exist and therefore, no useful purpose would be served in allowing the complaint to proceed any further. Thus, in order to secure the ends of justice, the complaint deserves to be quashed.

Consequently, the criminal misc. petition is allowed. The complaint filed by the respondent being Criminal Original Case No. 1517/04 against the petitioner before Additional Chief Judicial Magistrate (Economic Offences), Jodhpur is hereby quashed. Stay petition also stands disposed of.