D.S. Nanda vs Delhi Control Devices Pvt. Ltd.
2007 Latest Caselaw 380 Del

JUDGMENT

A.K. Sikri, J.

1. The respondent herein had filed a complaint under Section 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code against M/s. Creative Handicrafts (Electronic Division), Mr.D.S. Nanda, Mr.T.S. Bhatia and Mr.Subroto Roy. The complaint was, obviously, on the basis of a dishonoured cheque and was filed on 10.8.1990. Cheque in question was for a sum of Rs.7 lacs, which was dishonoured on 10.4.1990. Accused persons were summoned in this complaint. Thereafter, they approached the respondent (hereinafter called the 'Complainant') and wanted him to withdraw the said complaint. In this behalf, ultimately agreement dated 14.5.1991 was executed between the complainant and accused No. 1/petitioner herein, pursuant whereto the complainant withdrew the complaint. In this agreement, it was agreed that a sum of Rs.3,19,620/- in all shall be paid to the complainant. There were certain other terms and conditions. After the withdrawal of the complaint under Section 138 of the NI Act the complainant approached the accused persons and requested them to honour the said agreement. However, despite repeated reminders and requests, they failed to do the needful. The complainant, in these circumstances, was compelled to file another complaint under Section 420/34 and 120B IPC, in which it is alleged that he was induced by the accused persons to enter into the said agreement giving false assurance so that the complaint in question filed by him is withdrawn and, therefore, the accused persons conspired between themselves and cheated him. The Magistrate took cognizance of the complaint after recording pre-summoning evidence and summoned Sh. D.S. Nanda alone and refused to summon the other accused persons.

2. Sh.Nanda, the petitioner herein, has filed this petition challenging the summoning orders. The submission is simple, namely, after the said agreement was arrived at between the parties pursuant to which the complainant had withdrawn the earlier complaint, entire payment of Rs.3,19,620/- , as agreed between the parties, was made by the petitioner to the complainant and, therefore, terms of the agreement stood satisfied. However, in the said agreement the petitioner had also to fulfilll certain other conditions regarding advance license fee and duty drawback etc. and some disputes arose on that account because of which the complainant filed the complaint. The submission of the petitioner, therefore, is that in any case admittedly there was a part compliance of the agreement in question and, therefore, it could not be said that there was any case of cheating. Learned Counsel for the petitioner further pointed out that in respect of other obligations there was a dispute between the parties and suit was also filed being Suit No. 1090/1994. He also pointed out that after the filing of the complaint on 8.1.1993 the respondent had served legal notice dated 5.7.1993 alleging non-compliance of the agreement on the basis of which he demanded payment of Rs.23,62,013/- and ultimately filed the suit for recovery thereafter. Therefore, he submitted that attributing non- compliance of the part of the agreement, the complainant was only demanding money and, therefore, had no right to maintain the criminal complaint. He submitted that in such circumstances, it could not be treated that it is a case of cheating and in support following judgments were cited:

1. Ajay Kumar and Ors. 131 (2006) DLT 130.

2. Rajendra Narayan Vajpeyi v. State and Ors.

3. Nageshwar Prasad Singh @ Sinha .

4. S. Surbir Singh v. Mahender Kumar Rajput and Ors.

3. Learned Counsel for the respondent, on the other hand, submitted that in the summoning order the learned trial court had specifically mentioned that there was sufficient ground to proceed against the petitioner herein under Section 420 IPC and, therefore, this Court should not interfere at this stage. The petitioner should prove his defense at the stage of trial. He further submitted that first complaint under Section 138 was filed on the basis of dishonouor of cheque of Rs.7 lacs. However, the complainant agreed to withdraw the same after the agreement in question was arrived at as per which, it was agreed that not only the complainant would be paid a sum of Rs.3,19,620/- but in para 2 of the agreement it was also agreed that M/s. Creation Handicrafts (accused No. 1 in the earlier complaint) had applied to the Government for claiming CCS @ 10% on FOB Value amounting to Rs.1,81,500/-, which amount the petitioner agreed to pay to the complainant within one week from the date of receipt of the said amount from the Government. Paras 8 and 9 of the agreement further provided as under:

8. Thus the disputes shall stand settled and DCD shall withdraw or get dismissed the complaint filed agianst CH etc. and pending in the court of Sh. A.S. Yadav, MM, New Delhi.

9. The parties shall have no claim against the other regrading this export transaction subject to the fulfillment of the Clauses 1 to 7 by CH.

4. Thus, the complaint under Section 138 was to be withdrawn only on the fulfilllment of the conditions in the said agreement and believing the assurance of the petitioner that the complainant would be paid the amount of CCS and also fulfilll other conditions, the complainant withdrew the complaint. Non- fulfilllment of the said conditions would clearly show dishonesty on the part of the petitioner to cheat the complainant. He also submitted that in the instant petition this Court has passed order dated 13.12.1995 directing the petitioner to file the affidavit to the effect that he had not received the amount of Rs.1,81,500/- also to state as to whether he had complied other conditions of the agreement also. He pointed out that though affidavit dated 27.7.1996 was filed but the same did not comply with the directions contained in the aforesaid order. In this affidavit without specifically stating whether the petitioner had received the amount of Rs.1,81,500/- from the Government or that he had fulfillled other obligation, the petitioner has only mentioned about the suit for recovery filed by the complainant and the stand of the petitioner in the written statement in the said suit. Therefore, the petitioner had still to come out with specific plea as to whether payment of Rs.1,81,500/- was received from the Government. Learned Counsel for the respondent submitted that in view of this position, this Court should not exercise its extraordinary jurisdiction under Section 482 of the Cr.P.C., which was to be exercised very sparingly and cautiously as held in the following judgments:

1. State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 SCC (Crl.) 426

2. Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwarpal Gill and Anr. 1995 SCC (Crl.) 1095.

3. State of Maharashtra and Ors. v. Ishwar Piraji Kalptari and Ors. .

4. State of Himachal Pradesh v. Sh. Prithi Chand and Ors. .

5. State of Bihar v. Rajender Aggarwala 1996 Crl.L.J. 1372.

6. Mushtaq Ahmed v. Mohd. Habibur Rehman Faizi and Ors. .

5. Having considered the submissions of counsel for both the parties, I am of the view that this petition has to fail. The complainant is trying to make out a case that agreement dated 14.5.1991 is partly fulfillled by making payment of Rs.3,19,620/- and, therefore, it cannot be a case of cheating if other part of the agreement is not fulfillled, more so when there are disputes about that and suit is also pending. However, what is lost sight of by the petitioner is that in the said settlement the petitioner had also accepted that he would pay the amount of CCS to the complainant. According to the complainant, the petitioner has received the amount of Rs.1,81,500/- from the government but has not paid the same to the petitioner, though undertaken and it is done by the petitioner with the intention to cheat the complainant. Specific order was passed by this Court directing the petitioner to file an affidavit to the effect that as to whether he had received this amount or not and further whether he had complied with other conditions of the agreement. In the affidavit filed this particular query is not answered and reference is made to the dispute between the parties, which is subject-matter of Suit No. 1090/1994. Thus, I feel that the trial court was right in holding that there was a prima facie case for summoning the petitioner in the said complaint. This Court in its extraordinary jurisdiction under Section 482 of the Cr.P.C. would not like to interfere with this exercise done by the learned trial court and the petitioner shall, at the most, form his defense, which he would be permitted to lead. Moreover, even the notice is yet to be framed and the petitioner can raise these issues at that time. The petition is accordingly dismissed. However, any observations made in this order shall have no bearing and the trial court shall proceed with the matter uninfluenced by the same.