Anil Sharma & Others vs Hoshiyar Singh Thapli & Others

Sharad Kumar Sharma, J

These two applications under Section 482 of Cr.P.C. are almost involving an identical set of facts and circumstances; hence, they are being decided together so as to avoid any conflict in findings.

The applicant to the C482 application No. 1005 of 2009 "Anil Sharma vs. Hoshiyar Singh Thapli' has questioned the summoning order dated 07.10.2009 issued by the learned Chief Judicial Magistrate, Dehradun, arising out of Criminal Complaint Case No. 3997 of 2009 'Hoshiyar Singh Thapli vs. Anil Sharma', initiated by the complainant/respondent, under Section 138 of Negotiable Instruments Act.

In the connected C482 application No. 1006 of 2009, the same has been preferred by the accused applicant questioning the summoning order dated 11.11.2009 as passed by the Chief Judicial Magistrate, Dehradun, arising out of Criminal Case No. 4104 of 2009 'Hoshiyar Singh vs. Anil Sharma' under Section 138 of the Negotiable Instruments Act.

In the complaint, which was lodged by the respondent on 16.09.2009, his case was that he had entered into a building contract and as he undertakes the project of construction and renovation work of various buildings a contract/agreement is said to have been entered for development and construction for work at Chopra Sara, Kyarkuli Mussorie between them. As a consequence of the said transaction the accused applicant was supposed to remit a sum of Rs.15 lakhs, which was to be paid to respondent no. 2 by applicant and according to the complaint the accused applicant is said to have issued a Cheque No. 864613 of part drawn at Indian Overseas Bank dated 26.05.2009, by virtue of which out of total liability of Rs.15 lakhs Rs.9 lakhs was intended to be paid by the accused applicant to the respondent/complainant. On a presentation of the cheque before the Bank the same was returned by the Bank as uncleared on 22.07.2009 with a remark on the same that funds were insufficient. The respondent no. 2 on a cheque being dishonoured had send a notice within time. In response to the notice sent by the complainant on 10.08.2009, a reply was submitted by applicant/accused on 8.09.2009, which was received by the complainant/respondent on 10.09.2009, and he denied the liability. Thus, the complaint case was lodged on 16.09.2009 praying for initiation of the proceedings under Section 138 of the Negotiable Instruments Act for commission of an offence due to dishonour of cheque issued by the respondent for a sum of Rs.9 lakhs.

The learned trial Court of Chief Judicial Magistrate, Dehradun, taking cognizance to the complaint had issued the summoning order dated 07.10.2009, whereby the applicant was called upon to participate in the proceedings thus drawn by the complainant/respondent for the aforesaid offence.

It is this summoning order as well as the proceedings of the complaint case, which has been put to challenge by the accused applicant, wherein, he has prayed for a relief for quashing the summoning order passed by the learned Chief Judicial Magistrate, Dehradun.

The argument as extended by the learned Senior Advocate, on behalf of the applicant is that though the fact of issuance of cheque dated 26.05.2009, for the work of site development and construction at Chopra Sara, Kyarkuli Mussoorie was a fact, which was not disputed, but the argument extended and a distinction which was attempted to be carved out was to the effect that the remittance of the amount pursuant to the cheque, was subject to the fulfillment of certain preconditions mentioned in the Memorandum of Understanding it was that only when the name of the complainants stands recorded in the revenue records on the basis of the sale deed dated 03.01.2001 and sale deed dated 06.09.2007, it was then only that the complainant/respondent would be entitled to receive the amount thus rendered by the complainant through cheque dated 26.05.2009.

Further, in support of his contention the applicant he has placed reliance on the Memorandum of Understanding, which is said to have been executed between them on 06.09.2007, wherein the parties to the present C482 application had entered into an agreement for the construction of work on the spot and in terms settled thereof the clearance of cheque was said to be made subject to the conditions given in the said Memorandum of Understanding. The case of the applicant is further that the respondent/complainant by placing wrong facts had issued the notice for initiation of the proceedings under Section 138 of Negotiable Instruments Act, more particularly, when as per the interpretation of Memorandum of Understanding dated 06.09.2007, as a matter of fact, not legally enforceable amount according to the applicant fell due to be paid by the respondent.

The argument of learned Senior Advocate is that once handing over of the cheque dated 26.05.2009, is preceded by conditions imposed by the Memorandum of Understanding dated 13.10.2007 executed earlier for the work until and unless those conditions were fulfilled and if the cheque as presented for payment and if it is dishonoured then it will not constitute to be an offence under Section 138 of Negotiable Instruments Act, and no cognizance can be taken on the same.

There may be a condition contained in the Memorandum of Understanding dated 13.10.2007, but, the fact remains that the sale deed, which was executed on 03.01.2001 and was followed by sale deed dated 06.09.2007 in favour of the applicant, in fact the conveyance stood concluded in that eventuality, it is absolutely the responsibility of the purchaser applicant to have applied under Section 33 r/w Section 34 of the Land Revenue Act for getting himself mutated in the revenue records and if the applicant sits over and does not even move an application for mutation then he cannot take advantage and delay the payment promised to be paid by cheque, hence, the condition imposed in the Memorandum of Understanding that encashment of the cheque would be subject to the mutation would in that eventuality would be taken to continue to persist for an indefinite period is absolutely an irrational and an illogical basis, which is sought to be argued by the learned counsel for the applicant because in the present case once a benefit has been accrued in favour of the applicant by execution of the sale deed a right has been vested over the property thus it makes the amount logically payable under the cheque, as to be a legally enforceable due to be paid and thus Section 138 of the Negotiable Instruments Act would be attracted.

In that view of the matter, since after the execution of the sale deed a right has accrued and admittedly there is nothing on record to show that the applicant had moved an application for mutation based on the sale deed dated 03.01.2001 and benama dated 6.09.2007, the applicant cannot take the benefit that he would be precluded from getting the cheque honoured, more particularly, because his name is not mutated in the revenue records. On that pretext itself the C 482 application lacks merit and is, accordingly, dismissed. Interim order stands vacated.

The common findings, which has been recorded for the purpose of deciding the present C482 application, would be confined only for deciding the present application and it would not affect an adjudication of the Trial on its own merit.