9911796707
TMI Blog2009 (2) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... nour of a cheque No. 782563 dated 10th September 2005 in the sum of ₹ 60,000/- drawn by the Respondent No.2 Ashok Verma in favour of the Petitioner Thakur Arora as part payment of loan borrowed by the Respondent No.2 from the Petitioner. The said cheque was dishonoured with the remarks funds insufficient . 3. During the pendency of the complaint the parties entered into the memorandum of understanding ( MOU‟) on 8th November 2006. The said MOU reads as under: Memorandum of Understanding This memorandum of understanding is executed at New Delhi on this 8th day of November 2006 between Mr. Thakur Arora s/o Sh. Surat Prakash Arora r/o P-22A, Sri Niwas Puri, Private Colony, New Delhi (hereinafter referred as First Party) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. That this MOU has arrived between the parties of their free will, coercion and without any influence/force from any side. In witness whereof this Agreement is signed by both the parties in the presence of the following witnesses on this 8th day of November 2006. 4. Pursuant to the aforementioned MOU post dated cheques dated 16th December 2006 were given to the Petitioner. The complaint was listed on 9th November 2006 before the learned MM. Although the learned MM was informed of the MOU, the complaint was not disposed of on that basis. 5. Thereafter on 18th October 2007 the Respondent No.2 accused filed an application before the learned MM under Section 147 NI Act read with Section 320 (8) and 255 CrPC for recording the acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the judgment of the Supreme Court in Lalit Kumar Sharma Anr v. State of UP V (2008) SLT 1. He submits that when the compromise did not materialize, the cheques issued thereunder could not be said to have been issued in discharging the liability of the original debts and therefore no subsequent complaint would be maintainable. 8. In the present case the MOU contained a clear stipulation that if the cheques issued pursuant to the MOU were dishonoured, the MOU would come to an end and the original complaint would revive. The complaint was not disposed of on the basis of the said MOU and was kept pending, at which stage the Petitioner filed an application seeking discharge. 9. In the judgment in Venkatesh Dutt the facts were th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason is simple. Section 138 of the Negotiable Instruments Act specifically refers to only that cheque which is issued towards the liability drawn by a person on an account with a banker for payment of money and no other cheque. Once the parties enter into an agreement during the pendency of such complaint or proceedings and complainant accepts the cheques given by the accused in lieu of the subject matter of original complaint every cheque gives rise to a fresh cause of action if it, on presentation is dishonored as in that case original complaint becomes extinct. Aggrieved person has a right to file as many complaints as many cheques were given to him as every cheque under the Act provides an independent and fresh cause of action to the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant filed another criminal not only against Manish Arora and Ashish Narula. Lalit Kumar Sharma, who became a director of the said company on 15th February 2000 and another person who became a Director on 1st December 1994, were also arrayed as accused. Both of them had resigned from the post of directorship on 30th November 2000. The learned MM summoned all the accused. Their challenge in the revision petition was negatived by the High Court and thereafter they approached the Supreme Court. 14. The Supreme Court categorically held that in the above circumstances a separate complaint could not be maintained since the cheque issued in terms of the compromise was not towards any liability for which the earlier compliant had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the law as explained in Venkatesh Dutt may not longer be considered to be good law in the light of the judgment of the Supreme Court in Lalit Kumar Sharma. 16. In the considered view of this Court, the complainant cannot be without a remedy. If he cannot, as explained in Lalit Kumar Sharma, be permitted to file a fresh complaint on account of the dishonour of the cheques issued pursuant to the compromise, then the original complaint must be permitted to be revived. Accordingly, the impugned order of the learned MM is set aside. The complaint will now be revived before the learned MM. 17. The matter will now placed before the learned ACMM on 2nd March 2009 for being assigned to the concerned learned MM for being proceeded in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
