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TMI Blog2018 (10) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138 of the Negotiable Instruments Act, 1881 having been committed by the petitioners qua certain cheques which had been issued by them in favour of the former, each upon presentation having been returned unpaid by the bank, no payment having been made inspite of elapse of the statutory period(s) in the wake of demand notice(s) which had been issued and duly served. The Metropolitan Magistrate, after preliminary inquiry, issued summons against the petitioners. The petitioners raised certain contentions before the Metropolitan Magistrate at the stage of service of notice under Section 251 of the Code of Criminal Procedure, 1973 (Cr. PC). The same having been repelled, the petitioners approached the court of Sessions invoking it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriage of justice by initiation of criminal action against the petitioners on the basis of allegations set out in the criminal complaints referred to above. 6. It appears that the respondent (complainant) is the owner of certain immovable properties in Village Tikri Kalan, New Delhi-110 041, the first petitioner being in the business of hospitality industry desirous of setting up a motel, the other petitioners being its directors. The parties had entered into a lease agreement on 09.06.2011 respecting the said immovable property in terms of which it was let out by the complainant to the petitioners initially for a period of 108 months with effect from 01.09.2011, it being subject to renewal for a further period of six years or in part. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the drawer (the petitioners). In the wake of the dishonor of the cheques as above, notices of demand were issued within the statutory period and complaints were filed after elapse of the period prescribed in law. 10. It is the submission of the petitioners that difficulties had arisen in the use and enjoyment of the leased property due to various reasons including seepage, etc. and on this account certain correspondence was exchanged but since there was no satisfactory resolution, the petitioners were left with no option but to issue "stop payment" instructions to the bank. It is submitted that against this backdrop, the petitioners had also called upon the complainant not to present the remaining post dated cheques which, even other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior consent and approval of the drawer. It is also the submission of the petitioners that against the interest free security deposit which was made at the inception of the tenancy, there is no legally enforceable debt or other liability subsisting on account of the dishonor of the five cheques and in this context reliance is placed on M/s. Indus Airways Pvt. Ltd. and Ors. vs. M/s. Magnum Aviation Pvt. Ltd. and Anr., 2014 (2) JCC 115; (2014) 12 SCC 539. 12. It cannot be lost sight of that the determination of the lease by return of the demised premises to the lessor on 30.03.2013 is an event subsequent to the prima facie commission of the offences under Section 138 of the Negotiable Instruments Act, 1881 which are the subject matter of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the arbitration clause forming part of the lease agreement, the parties are presently before an arbitrator vis-a-vis the refund of the security deposit. Such deposit and arbitral proceedings relate to civil rights and obligations, determination of such rights and obligations being still pending, no benefit on that account can be claimed - not atleast at this stage of the criminal process, in the context of proceedings relating to offences under Section 138 of the Negotiable Instruments Act. 14. On the foregoing facts and in the circumstances, it is clear that the contentions of the petitioners at best give rise to questions of facts which will have to be determined by the trial court on the basis of evidence. [see Rajiv Thapar and Ors ..... X X X X Extracts X X X X X X X X Extracts X X X X
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