Delhi High Court
Harish Kapoor vs Akansha Gupta on 4 December, 2008
Author: Aruna Suresh
"REPORTABLE"
33#
* HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. 3869/2007
Date of decision: 4.12.2008
# HARISH KAPOOR ..... PETITIONER
! Through : Ms. Geeta Luthra, Adv. with
Mr. Attin Shankar Rastogi, Adv.
Mr. Shivkant Arora, Adv.
Versus
$ AKANSHA GUPTA .......RESPONDENT
^ Through : Mr. Kumar Sushobhan, Adv.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
ARUNA SURESH, J. (Oral)
1. Shashank Kapur was married to Akanksha
Gupta/complainant on 27.6.2000 according to
Hindu rites and ceremonies in Delhi. Shashank
Kapur happens to be son of the petitioner.
However, disputes and differences arose between
the complainant and her husband which resulted
into filing of divorce petition by Shashank Kapur,
her husband.
2. Complainant lodged FIR No. 259/07 dated
12.4.2007 under Sections 498-A/406/34 IPC at
Police Station Punjabi Bagh against her husband,
Shashank, the present petitioner and other co-
accused persons with allegations of cruelty for
demand for dowry.
3. Petitioner was arrested in the said case. He was
produced before the learned MM on 4.5.2007
where petitioner made a proposal for settlement
and agreed to pay to the complainant an amount of
Rs. 2.5 crores towards settlement of her claims
regarding maintenance, alimony etc. with her
husband Shashank Kapur and also that parties
would seek mutual divorce by adopting proper
forum for the same. Consequently petitioner
handed over cheques No. 203022 dated 8.5.2007
for a sum of Rs. 5,00,000/- drawn on Bank of India,
203021 dated 8.6.2007 for a sum of Rs.
1,20,00,000/- drawn on Bank of India and 203023
dated 8.8.2007 for a sum of Rs. 1,25,00,000/-
drawn on Bank of India in terms of the settlement.
4. Complainant/respondent presented cheque No.
203023 dated 8.8.2007 for Rs. 1,25,00,000/- drawn
on Bank of India in her account for encashment
which was dishonoured on 20.8.2007 with the
remarks "Payment Stopped by the Drawer".
Complainant thereafter issued legal demand notice
dated 31.8.2007 under the Negotiable Instruments
Act (hereinafter referred to as NI Act) and when
petitioner and other accused persons failed to
make the payment on demand of the dishonoured
cheque, complainant filed a complaint under
Section 138 of the NI Act against the present
petitioner and Girish Kapur, the other co-accused.
5. Vide order dated 5.11.2007 the learned trial court
while dismissing the complaint being complaint No.
18112/2007 against accused Girish Kapur was
pleased to summon the petitioner.
6. It is submitted by counsel for the petitioner that
alone said three cheques were given pursuant to
the settlement which was entered into between the
parties under duress and coercion and the said
cheques were to be encashed by the respondent at
different stages. It is argued that the cheque in
question was not given for discharge of debt or any
other liability nor does petitioner had any liability
towards the respondent. The cheque in question
was to be encashed at the time of quashing of FIR
No. 259/2007 after respondent and her husband
got divorced, however, they had not yet divorced
each other and this made the settlement
ineffective. Hence, since the settlement did not
materialize and ingredients of Section 138 of NI
Act are not made out, the impugned complaint and
summoning order deserve to be quashed.
7. Learned counsel for the respondent states that
petitioner had liability towards the respondent,
since it was agreed in the settlement before the
trial court that petitioner would pay the respondent
a sum of Rs. 2.5 crores and only on this ground the
petitioner was granted bail by the trial court on
4.5.2007. Since, petitioner had liability to pay the
amount under the settlement therefore, he has
been rightly summoned by the trial court for the
offence under Section 138 of the NI Act.
8. Section 138 of the NI Act so far as the relevant for
the purposes of the present case reads as follows:
"Sec. 138. Dishnour of
cheque for insufficiency, etc., of
funds in the accounts.--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 extend to two
year, or with fine which may
extend to twice the amount of the
cheque, or with both:
Provided that nothing contained in
this section shall apply unless--
(a)....
(b)....
(c)....
Explanation.--For the purposes of
this section, "debt or other
liability" means a legally
enforceable debt or other liability."
9. For enforcing her claim under Section 138 of the
NI Act, complainant had to show that the cheque
issued in her favour by the petitioner was against
any legally enforceable debt or liability.
10. As per the mutual settlement between the parties,
petitioner had issued three post-dated cheques of
different amounts totalling to Rs. 2.5 crores. As
per the settlement, the impugned cheque for Rs.
1.25 crores was to be got encashed by the
respondent at the time of quashing of the FIR.
11. Admittedly, no petition for seeking quashing of the
FIR has been filed by the respondent or by
Shashank Kapur. It is also not disputed that this
compromise was arrived at and the cheque was
issued by the petitioner when he was in custody
and was produced before the Court and had sought
his release on bail. Court had granted bail in view
of the compromise having been arrived at between
the petitioner and the respondent. Under these
circumstances, the impugned cheque cannot be
considered as a cheque issued for consideration or
in discharge, in whole or in part, of any debt or
other liability towards the complainant/respondent.
Petitioner being father-in-law of the complainant
was not under any obligation, legally or otherwise,
to make arrangements and discharge the liability of
Shashank Kapur, his son, towards the respondent
for her permanent alimony or for return of
istridhan or dowry articles. The post-dated cheque
issued in a criminal case in a compromise between
the parties cannot be considered as payment of any
debt or other liability which is legally enforceable
against petitioner.
12. In Lalit Kumar Sharma and Another v. State of
Uttar Pradesh and Another - (2008) 5 SCC 638
wherein a second cheque was issued on
compromise in a complaint under Section 138 of
the NI Act, which on presentation was also
dischonoured, it was observed that since second
cheque was issued in terms of the compromise, it
did not create a new liability and therefore, as the
compromise did not fructify, the same could not be
said to be issued towards the payment of debt.
13. In the facts and circumstances of this case, since a
post-dated cheque was issued which was to be
encashed at the time of quashing of the FIR and
that too upon a settlement arrived at between the
father-in-law and daughter-in-law, it cannot be said
that this cheque was issued towards payment of a
debt which could be legally enforced by the
complainant/respondent against the petitioner.
Legally she is entitled to enforce her claims for
istridhan, dowry articles and maintenance against
Shashank Kapur, her husband, however,
respondent is not entitled to enforce such rights
against the petitioner and the petitioner under no
circumstance was legally liable to pay any amount
for settlement of the marital dispute between his
son and the respondent.
14. As stated above, respondent deposited this cheque
for encashment in her account before approaching
the Court for quashing of the FIR and therefore,
the petitioner was within his rights to stop the
payment of the cheque as respondent/complainant
had failed to fulfill her part of the obligation in
terms of the settlement. From the facts and
circumstances of the case, it is manifestly clear
that the settlement did not fully fructify between
the parties and petitioner had no legal liability nor
had any debt towards the complainant which could
be legally enforced as a debt against the petitioner
by the respondent under Section 138 of the NI Act.
15. Hence, no offence can be said to have been made
out against the petitioner under Section 138 of the
NI Act. The trial court erred in summoning the
petitioner on the basis of averments contained in
the complaint as he failed to appreciate that the
impugned cheque was not issued towards payment
of any legally enforceable debt but was for
purposes of settlement against the marital dispute
between the petitioner's son and the respondent.
16. Hence, petition is allowed. The complaint case No.
18112/2007 and summoning order dated 5.11.2007
are hereby quashed.
17. Attested copy of the order be sent to the trial court
immediately.
(ARUNA SURESH)
JUDGE
December 04, 2008
jk
