Joginder Singh Sidhu and Another vs Virat Verma

Rajive Bhalla, J.—By way of the present petition filed u/s 482 of the Code of Criminal Procedure, the petitioners pray for quashing of the complaint dated 18.4.1998 and the summoning order dated 3.2.2001 (Annexures P-1 and P-2).

The respondent was admitted as a student in St. Kabir Institute of Pharmaceutical and Technical Education, Fazilka being run by the petitioners. On account of a change of policy, the respondent''s admission was not recognized by the Government and, therefore, he was unable to take the course. The petitioners dispatched cheque No. 9284568 dated 11.9.1997 for a sum Of Rs. 35,000/- as refund of the fee charged from the respondent. This cheque was dishonoured and led to the respondent filing a complaint u/s 138 of the Negotiable Instruments Act. Vide the impugned order dated 3.2.2001, the petitioners were summoned to stand trial.

Counsel for the petitioners contends that after the filing of the complaint, the petitioners have paid a sum of Rs. 35,000/- to the respondent by way of a demand draft No. 236212 dated 26.6.1998. As acknowledgement of the receipt of the draft, the respondent has issued an acknowledgement that nothing was due from the College. On the basis of the aforementioned communication, Counsel for the petitioners argues that as the respondent''s grievance stands redressed, the continuation of the complaint would be an abuse of the process of law and an exercise in futility. The complaint and the summoning order are, therefore, liable to be quashed.

Counsel for the respondent, on the other hand, contends that the correctness of the aforementioned documents, alleged to have been executed by the petitioners, cannot be determined in proceedings u/s 482 of the Code of Criminal Procedure. It is denied that the respondent issued any such receipt. It is contended that a perusal of the photostat copy, as also the translation thereof, reveals that the alleged acknowledgement receipt does not bear any date. It is further argued that the offence having been committed by dishonour of the cheque and the failure of the petitioners to pay money, as demanded in the notice of demand, served u/s 138 of the Negotiable Instruments Act, the complaint and the summoning order should not be quashed. It is also argued that the alleged receipt (Annexure P-4) is a part of the defence of the petitioners required to be established by adducing evidence before the Trial Court and, therefore, the present petition be dismissed.

I have heard the learned Counsel for the parties, perused the paper book, the complaint and the summoning order as facts have already been narrated above, they do not merit repetition. The sole ground upon which Counsel for the petitioners has prayed for quashing of the complaint and the summoning order is that after the filing of the complaint, the respondent had executed a receipt Annexure P-4. In my considered opinion, the said plea cannot be the basis for a plea to quash the complaint/summoning order. A plea of discharge of liability, evidenced by a receipt is a plea of fact required to be established by proving payment of the amount due as also due execution of the receipt. This plea can only be established and proved by adducing evidence in support thereof.

In the facts and circumstances of the case, no finding can be returned as to the genuineness or validity of the receipt (Annexure P-4) or as to the fact that the respondent has received the amount due.

In view of the above, I find no merit in the present petition, which is dismissed with liberty to the petitioners to raise all the pleas raised herein before the Trial Court at an appropriate stage.