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TMI Blog2024 (3) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner no. 1 for sale of its movables and immovable property of its factory situated at Plot No. A-1 and B-1 measuring 32926.20 sq. mtr. (Comprising 24406.73 sq mtr. of A-l and 8519.47 sq. mtr of B-1) at Village Dhalwala, Muni-ki-Reti Industrial Area, District Tehri Garhwal, Uttarakhand, for a total consideration of Rs. 9.30 crores. 3. That in terms of the said Agreement to Sell, the petitioners, after paying sale consideration to the tune of Rs. 5,73,64,050/-, were liable to pay the balance sale consideration of Rs. 3,47,05,950/-, which they undertook to pay in form of discharge of liabilities / dues of the respondent on or before 30.09.2018. The complaint further alleges that it was agreed between the parties that on failure on the part of the accused to discharge the said dues, it would entitle the respondent to recover the same from the petitioners / accused. In order to secure the payment of the aforesaid dues, a cheque bearing no. 079173 for a sum of Rs. 75,00,000/- drawn on the Punjab National Bank, Rishikesh, was issued by the petitioner in favour of the respondent as a security deposit. 4. It is further alleged that the debt that the petitioners had undertaken to dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of the dues to such institutions and others, thereby entitling the respondent to present the cheque for encashment. She submits that in any case, these are matters to be considered by the learned Trial Court and cannot be a ground for quashing the complaint at this stage. Submissions in rejoinder by the learned counsel for the petitioner: 10. In rejoinder, the learned counsel for the petitioner submits that the plea of the respondent that the lease deed has been obtained by misrepresentation is totally false and, in fact, it is the respondent who is trying to make an unjustified gain by encashing the cheque. Analysis and Conclusion 11. I have considered the submissions made by the learned counsels for the parties. 12. The averments made in the complaint, so far as they are relevant to the present petition, are as under- "B. That as per the terms of the Agreement to Sell dated 31.03.2018, the Accused, after paying sale consideration to the tune of Rs 5,73,64,050/-, was liable to pay balance sale consideration of Rs. 3,47,05,950/-. That as per the terms of the business transaction between the Complainant and the Accused, the Accused undertook to discharge the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the parties/authorities and the Seller had to pay due to any reason whatsoever, the seller will debit the account of purchaser with those payments along with interest and penalty, if any, imposed and shall be entitled to recover the amount as if the purchase consideration of this Agreement to Sell has not been fully paid off to the Seller and to secure this payments, the Purchaser has agreed to Issue Undated Cheque No. 079173 of Punjab National Bank., Rishikesh for Rs 75,00,000/- (Rupees Seventy Five Lakhs only) and in case of delay on part of the Third party in making payment of above dues excluding SIIDCUL before 31st Oct, 2018, the Purchaser has agreed to pay a penalty of Rs. 25,00,000/- for which a Cheque No. 079174 for Rs. 25,00,000/-(Rupees Twenty Five Lakhs Only) drawn on Punjab National Bank, Rishikesh is given in favour of Seller towards security deposits which will be returned to buyer upon settlement of above dues." (Emphasis supplied) 15. The above condition in Agreement to Sell was reiterated in the Addendum in Clause 5 thereof, which is reproduced hereinunder:- "5. It is further agreed between the buyer and seller that if purchaser fails to pay the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make any payment to any of the abovementioned workers/authorities. Therefore, the liability for which the cheque of Rs.75 lakhs was given by the petitioners as security to the respondent, had not arisen and the cheque could not have been presented for encashment by the respondent. 19. Section 138 of the NI Act reads as under:- "Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint. 24. In State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp (1) SCC 335, the Supreme Court has laid down the following illustrative cases where the Court can exercise power to quash a complaint. It is quoted as under:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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