Shri Des Raj Gautam vs Sh. Pankaj Kumar Sharma

Kuldip Singh, J.—This petition has been filed for quashing the Criminal Case No. 186-I/08/95-II/II, titled Pankaj Kumar vs. Des Raj pending in the Court of learned Judicial Magistrate Ist Class, Court No. II, Amb arising out of proceedings u/s 138 of the Negotiable Instrument Act, 1881 (for short Act). The brief facts as alleged are that respondent had filed a criminal complaint u/s 138 of the Act against the petitioner. The respondent has alleged that petitioner entered into an agreement with the respondent and his other family members regarding the purchase of their shares of certain land. The respondent further contended in the complaint that at that time the petitioner inspected the spot and also inspected the revenue records and thereafter the petitioner entered into an agreement.

The petitioner agreed to purchase land at the rate of Rs. 24,000/- per kanal. In the presence of witnesses, the petitioner had paid a sum of Rs. 1,00,000/- to the respondent and also issued one post dated Cheque No. 978251 dated 5.7.2008 of Oriental Bank of Commerce, Una. It has been alleged that remaining price of the land was agreed to be paid by the petitioner to the respondent at the time of execution of the sale deed within a period of three months from 14th June, 2008. The respondent presented the cheque for encashment in the month of July, 2008, however, the same was dishonoured due to the reason payment stopped as per memo dated 18.7.2008.

It has been alleged that respondent approached the petitioner and asked him why he had stopped the payment. The petitioner assured the respondent that now the cheque in question would be honoured. The respondent thereafter presented the cheque for encashment but again the cheque was dishonoured as per memo dated 11.9.2008. The respondent issued notice dated 13.10.2008 but despite that no payment was made and the complaint was filed. The learned Judicial Magistrate Ist Class took cognizance and issued process to the petitioner. The petitioner put in appearance before the trial Court. He moved an application for dropping the proceedings against him on the grounds that it is not a case of legally enforceable debt or liability. The learned Judicial Magistrate rejected the application. The petition has been filed u/s 482 Cr.P.C. for quashing the proceedings.

It has been submitted by learned counsel for the petitioner that a fraud has been played by the respondent with the petitioner. The complaint against the petitioner is not maintainable as cheque in question has not been issued by the petitioner for discharging legally enforceable liability. The petitioner had issued the cheque under the impression that the title of the respondent over land in question is free from all encumbrances. The verification report made by the Executive Engineer and perusal of jamabandi make it clear that the title of the respondent over the land in question is not clear as such the respondent has no right to present the cheque in question for encashment in the bank.

The complaint u/s 138 of the Act on the basis of cheque in question is not maintainable. It has been submitted that respondent has suppressed material facts from the petitioner and intentionally did not disclose the true facts to the petitioner. The respondent misrepresented the petitioner and committed fraud on the petitioner. The petitioner never entered into an agreement under his free will or consent. The respondent misrepresented and played fraud and as such the agreement is voidable at the instance of petitioner. It has been submitted that in these circumstances, petitioner has rightly instructed his banker to stop the payment of the cheque. The learned counsel for the petitioner has submitted that dispute between the parties is of civil nature and in support of his submission he has relied G. Sagar Suri and Another Vs. State of U.P. and Others, .

In the petition, the petitioner has stated that cheque was issue by him, under what circumstances the cheque was issued that has also been stated in the petition. It has been stated that fraud has been played with the petitioner by respondent. The agreement is voidable. The dispute between the parties is of a civil nature. There was no legally enforceable liability which was to be discharged by the petitioner by issuing the cheque.

These contentions of learned counsel for the petitioner are to be considered by the trial Court, if raised at the appropriate stage of the proceedings. The petition is u/s 482 Cr.P.C. The material relied by learned counsel for the petitioner at this stage cannot be considered by this Court u/s 482 Cr.P.C. The petitioner has admitted issuance of cheque in question. He has also stated that payment of the cheque was stopped by him. Now, it is for the petitioner to explain before the trial Court under what circumstances the cheque was issued and payment was stopped.

In G. Sagar Suri case (supra) the Supreme Court has held that jurisdiction u/s 482 Cr.P.C. has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. In other word the contentions raised by learned counsel for the petitioner are to be considered by the Court below, in case those contentions are raised before that Court. There is no merit in the petition. The result of above discussion, the petition fails and is accordingly dismissed. The pending applications, if any are also disposed of in view of disposal of the main petition.