9911796707
TMI Blog2022 (2) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... is true that originally, the claim of the respondentcomplainant was ₹ 75 Lacs. However, when the petitioner could not honor the two cheques of ₹ 37.50 Lacs, which led to the issuance of statutory Notice dated 13.12.2016 under Section 138 of the N.I. Act by the respondent-complainant raising a demand of ₹ 75 Lacs, the petitioner arrived at a compromise with the respondent-complainant and executed the settlement agreement dated 16.03.2017 whereby, the petitioner agreed to pay additional amount of ₹ 10 Lacs towards loss / damages, over and above the claim of ₹ 75 Lacs, meaning thereby that the petitioner had agreed to pay ₹ 85 Lacs to the respondent-complainant - it is not open for the petitioner to now contend that the claim of ₹ 85 Lacs raised in the statutory Notice dated 20.02.2019 exceeds the original claim of ₹ 75 Lacs since the additional amount of ₹ 10 Lacs is an outcome of the settlement agreement dated 16.03.2017 duly executed by and between the parties and which has not been disputed by the petitioners. There is no dispute regarding the proposition of law laid down in the case of Vijay Gopala Lohar v. Pandurang Ramcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India read with Section 482 of the Code of Criminal Procedure, the petitioners, original accused, have challenged the orders passed by the Court of learned Additional Chief Judicial Magistrate, Rajkot below application Exhibit-1 dated 16.03.2019 in the Criminal Cases instituted by the respondent-original complainant, which came to be confirmed by the orders passed by the Court of learned Additional Sessions Judge, Rajkot dated 26.02.2020 in the Criminal Revision Applications filed by the petitioners-original accused. 3. The petitioner in Criminal Misc. Application No.5010 of 2020 and Criminal Misc. Application No.5126 of 2020 are the same; whereas, the petitioner in Criminal Misc. Application No.4981 of 2020 and Criminal Misc. Application No.5108 of 2020 is also same and happens to be the Wife of the petitioner in the earlier two petitions. In Criminal Misc. Application No.5010 of 2020 and Criminal Misc. Application No.5126 of 2020, the issue relates to two disputed cheques worth ₹ 42.50 Lacs each whereas, in Criminal Misc. Application No.4981 of 2020 and Criminal Misc. Application No.5108 of 2020, the disputed cheques are worth ₹ 37.50 Lacs each. For the aforesaid f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sunil Vrujlal Shah (ii) No.407978 dated 12.01.2019 for ₹ 37.50 Lacs in favour of respondent Mohanbhai Kurjibhai Chaniyara and (iii) No.407979 dated 12.01.2019 of ₹ 37.50 Lacs in favour of respondent Sunilbhai Vrujlal Shah. When the aforesaid cheques were deposited in the Bank, the same were returned with the endorsement of Funds Insufficient on 21.02.2019. The respondents issued statutory demand Notice dated 22.02.2019 to the petitioner under Section 138 of the N.I. Act wherein, the respondent-complainant raised a claim of ₹ 80 Lacs being the amount of three cheques and an additional amount of ₹ 10 Lacs towards Legal Consultation / Advocate Fees. The said Notice was received by the petitioner on 23.02.2019 and when the petitioner failed to make the demand raised, the impugned complaints came to be filed. 4.1 In Special Criminal Application No.5108 of 2020, the impugned complaint being numbered as Criminal Case No.4390 of 2019 was filed for recovery of an amount of ₹ 5 Lacs in connection with cheque No.407980 dated 12.01.2019 for ₹ 5 Lacs issued by the petitioner. Whereas, in Special Criminal Application No.4981 of 2020, the impugned comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was executed between the parties, in pursuance of which the petitioner issued two cheques (i) bearing No.044344 dated 17.04.2017 of ₹ 42.50 Lacs drawn on Bank of India, Kalavad Road Branch, Rajkot in favour of the respondent-complainant and (ii) No.044345 dated 17.04.2017 of ₹ 42.50 Lacs drawn on the same Bank in favour of said Mohanbhai Kurjibhai Chaniyara. It appears that the petitioner again failed to act as per the compromise agreement entered into between the parties. 5.3 Thereafter, the parties appear to have entered into another compromise agreement dated 14.07.2017 whereby, the period of making payment was extended. In pursuance of such agreement, two cheques (i) No.044341 dated 16.08.2017 of ₹ 42.50 Lacs drawn on Bank of India, Kalawad Road Branch, Rajkot in favour of respondent-complainant and (ii) No.044342 dated 16.08.2017 of ₹ 42.50 Lacs drawn on the same Bank in favour of said Mohanbhai Kurjibhai Chaniyara, were issued by the petitioner. However, before the said two cheques could be deposited, the petitioner requested the respondent-complainant not to present the cheques as he was in need of money for the treatment of his father and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised in the impugned complaint cannot be said to be towards the legally enforceable debts. The original demand of the respondentcomplainant was on the basis of two agreements to sell and the claim is that he had paid an amount of ₹ 75 Lacs to the petitioner and his father. In connection with the said demand of ₹ 75 Lacs, it has been alleged that in the year 2016, two cheques of ₹ 37.50 Lacs each were issued in favour of the respondent-complainant and the said two cheques, having been dishonored, the respondent-complainant had initiated proceedings under the N.I. Act. 7.1 It was contended by learned advocate Mr. Jasani that the original demand was of ₹ 75 Lacs and thereafter, on three different occasions, different cheques were issued in favour of the respondent in pursuance of the settlement between the parties. However, the present proceedings arise on the demand of ₹ 85 Lacs and not on the original demand of ₹ 75 Lacs. Thus, the demand raised in the statutory Notice exceeds the original demand of ₹ 75 Lacs and on this ground itself, the impugned complaints are not maintainable in the eyes of law. 7.2 Learned advocate Mr. Jasani d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 75 Lacs to the petitioner as consideration for the purchase of two residential flats. The said payment was made by the respondent-complainant in pursuance of two different Agreements to Sell dated 02.02.2016 and 09.03.2016 executed by and between the petitioners and the respondentcomplainant. It appears that the petitioner had failed to perform his part of the obligation under the agreements and therefore, on 21.11.2016, the respondent-complainant had issued statutory notice to the petitioner. However, the parties arrived at some settlement and in pursuance thereof, the petitioner issued two cheques of ₹ 37.50 Lacs each, totalling ₹ 75 Lacs, in favour of the respondent. However, both the cheques got dishonored on the ground of insufficient funds . Therefore, statutory Notice dated 13.12.2016 under Section 138 of the N.I. Act was issued by the respondent-complainant raising a demand of ₹ 75 Lacs, which was duly served upon the petitioner. 10. Before the proceedings could move further, the parties appear to have reached at some settlement and executed a settlement agreement dated 16.03.2017 whereby, the petitioner had agreed to compensate the respondent-comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the N.I. Act by the respondent-complainant raising a demand of ₹ 75 Lacs, the petitioner arrived at a compromise with the respondent-complainant and executed the settlement agreement dated 16.03.2017 whereby, the petitioner agreed to pay additional amount of ₹ 10 Lacs towards loss / damages, over and above the claim of ₹ 75 Lacs, meaning thereby that the petitioner had agreed to pay ₹ 85 Lacs to the respondent-complainant. In view of the aforesaid factual aspects, it is not open for the petitioner to now contend that the claim of ₹ 85 Lacs raised in the statutory Notice dated 20.02.2019 exceeds the original claim of ₹ 75 Lacs since the additional amount of ₹ 10 Lacs is an outcome of the settlement agreement dated 16.03.2017 duly executed by and between the parties and which has not been disputed by the petitioners. 14. In Criminal Misc. Application No.5108 of 2020 and Criminal Misc. Application No.4981 of 2020 also, which has been filed by the Wife of the petitioner in Criminal Misc. Application No.5010 of 2020 and Criminal Misc. Application No.5126 of 2020, similar is the position. In these cases, the registered Agreement to Sell dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan of ₹ 5 Lacs from the complainant. Against the said loan, two cheques for ₹ 3 Lacs and ₹ 2 Lacs were issued in favour of the complainant. On presentation, both the cheques were returned upaid with the remarks - insufficient funds . Therefore, a complaint under Section 138 of the N.I. Act and other sections came to be filed. It was the say of the appellants that they were not signatories to the cheques and that on the date when the two cheques were issued, they had already resigned from the post of directorship of the Company. During the pendency of the complaint, the parties appeared to have arrived at some compromise whereof, it was agreed that if a cheque of ₹ 5,02,050/- is issued, then the complaint would be withdrawn. Pursuant thereto, a cheque of such amount dated 29.07.2000 was issued in favour of the complainant; however, on presentation, it was returned with the remarks insufficient funds . The complainant filed another complaint with regard to return of cheque dated 29.07.2000 not only against the erstwhile Directors but also against the present appellants. On the above facts, the Apex Court held that the second cheque dated 29.07.2000 was is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
