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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 ..... rally in favour of the complainant, the ingredients of the offence are altogether lacking. Applying the abovementioned principles enunciated by the Supreme Court to the facts of the present case, as the Complaint filed by the respondent lacks the necessary averments that would give rise to the debt and/or liability of the petitioners for which the cheque had been issued, the complaint filed by the respondent deserves to be quashed. Complaint, being pending before the Court is hereby quashed - Petition allowed. - HON BLE MR. JUSTICE NAVIN CHAWLA For the Petitioners Through: Mr. Somesh Chandra Jha Mr. Uttam Singh, Advs. For the Respondent Through: Ms. Tejasvini Puri, Adv. NAVIN CHAWLA, J. (ORAL) 1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C. ) read with Article 227 of the Constitution of India, praying for quashing of the complaint filed by respondent under Sections 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short, NI Act ), being CC No. 5840/2019, titled as M/s RMI Steels Ltd. v. M/s Garhwal Jems Jewellery Pvt. Ltd. Ors., pending before the Court of the learned Metropolitan Magistrate, NI Act- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the cheque of Rs. 75 lakhs could be encashed by the respondent only when the petitioners fail to make the payment in discharge of the liabilities of the respondent and the respondent is forced to make the payment for the same. 7. The learned counsel for the petitioners submits that in the present case, the complaint does not state that the respondent had to make any payment to its own debtors for discharge of the liability, therefore, to its own showing, there was no debt owed by the petitioners to the respondent for which the security cheque of Rs. 75 lakhs could have been presented by the respondent for encashment. He submits that, in the absence of these averments in the complaint, the complaint is not maintainable and is liable to be dismissed. Submissions of the learned counsel for the Respondent 8. On the other hand, the learned counsel for the respondent submits that the plea raised by the petitioner is a disputed question of fact, which can be best determined by the learned Trial Court on evidence being led by the parties. She submits that the petitioners have also obtained a Lease Deed from SIDCUL based on misrepresentations. 9. She submits that the Agreement to Sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexed herewith as Annexure B. E. That the Accused failed to discharge the debt by 29.03.2019 and in view of the same the Complainant presented the cheque bearing no. 079173 for clearance to Corporation Bank, Avenue Club Road, Punjabi Bagh, Delhi 110026 on 22.04.2019. The Complainant on 23.04.2019 received the 'Return Memo Receipt stating that the presented cheque could not be realised due to Funds Insufficient . True Copy of the cheque bearing no 079173 for Rs. 75,00,000/-issued in the favour of the Complainant is annexed herewith and marked as Annexure C. True copy of the Return Memo Receipt dated 23.04.2019 issued by Corporation Bank is annexed herewith and marked as Annexure D. (Emphasis supplied) 13. A reading of the above averments would show that the respondent claims that the liability for which the cheque has been presented is under the Agreement to Sell dated 31.03.2018 read with the Addendum dated 09.01.2019, and that the cheque had been presented for encashment as the petitioners failed to discharge their debt by 29.03.2019. In the Complaint, there is no averment that the respondent had to pay the debt due to the default of the petitioners. 14. The agreement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques, for compliance of all the terms and conditions of the Agreement to Sell dated 31st March 2018 Including Addendum thereto, the party of the third Part has deposited Original Sale deed no. 5284 dated 9th August, 2011 for 1090 Sq Mtr land at Rishikesh in the name of Smt Parul Shekhar which will be returned to the party of the Third Part upon settlement of dues pursuant to Agreement to Sell. (Emphasis supplied) 16. A reading of the above terms/clauses would clearly show that it is only where the petitioners, as a purchaser, fail to pay the dues owed to the workers, the State Industrial Development Corporation of Uttarakhand Limited (SIDCUL), Service Tax dues, and the VAT dues, owed by the respondent, and the respondent, as a seller, has to pay the same, that the respondent would debit the account of the petitioner/purchaser, making the petitioner liable to pay the said amount, and thereafter proceed to encash the security cheque of Rs.75 lakhs. 17. For the liability to arise for the presentation of the cheque for encashment, therefore, it is essential that the respondent is forced to make the payment to the workers/above-mentioned authorities, which liability, otherwise, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awer of the cheque, is that the cheque in question has been issued for the discharge, in whole or in part, of any debt or any liability of the accused. In Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel, (2023) 1 SCC 578 , the Supreme Court has held as under: 34. In view of the discussion above, we summarise our findings below: 34.1. For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation. 21. In the present case, as the debt or liability in terms of the Agreement to Sell and/or the Addendum itself had not arisen, Section 138 of the NI Act was not attracted and the ingredients of the offence were not satisfied. 22. Though, the learned counsel for the respondent has placed reliance on Section 139 of the NI Act to submit that there shall be a presumption that a cheque issued is for discharge of any debt or other liability, however, the presumption in the present case stands negated by the very terms of the Agreement to Sell and the Addendum. 23. Though the power under Section 482 of the Cr.P.C. is to be exercised sparingly and in the rarest of rare cases, at the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (Emphasis supplied) 25. In S.P. Mani Mohan Dairy v. Snehalatha Elangovan, (2023) 10 SCC 685 , the Supreme Court has held as under: 42. Thus, the legal principles discernible from the aforesaid decision of this Court may be summarised as under: Xxxx 42.8. The Court concerned would owe a duty to discharge the accused if taking everything stated in the complaint is correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. 26. Applying the abovementioned principles enunciated by the Supreme Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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