Om Prakash Tiwari & Ors. vs State & Anr.
2009 Latest Caselaw 1211 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+       Crl.M.C. 4954-56/2005


%                             Date of reserve: 18.03.2009
                              Date of decision: 06.04.2009

       OM PRAKASH TIWARI & ORS.                  ... Petitioners
                     Through:   Mr. S. S. Gandhi, Sr. Adv. with Mr.
                                Lalit Bhardwaj, Mr. Anuraj Singh
                                Rawat, advs.

                                 Versus



       STATE (through Govt. of NCT of Delhi) & ANR. ...Respondents
                        Through: Ms. Santosh Kohli, APP.
                                   Mr. Salabh Singhal, adv. for R-2.


       CORAM:
       HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers may be allowed       Yes
       to see the judgment?

2.     To be referred to Reporter or not?                         Yes

3.     Whether the judgment should be reported in the Digest?     Yes


MOOL CHAND GARG, J.

1. This petition has been filed by the petitioner aggrieved from the

summoning order and the complaint filed by the respondents against

them on account of dishonor of a cheque dated 07.10.2003 for a sum

of Rs.24,30,350/- which was given by the petitioners to M/s KMF

Builders and Developers Limited (hereinafter referred to as KMF) on

account of having entered into an agreement for the purchase of

certain shares in property comprising in the Old Survey No.105/1(part),

New Survey No. 34(1) situated at village Gauipada, Taluk Kalyan, Distt.

Thane. The said cheque was presented for payment by the respondent

to their bankers in July, 2004 and the same was returned back with the

remarks that the instructions have been given to the bankers by the

petitioners to "stop the payment".

2. It is a matter of record that no reply was filed by the petitioners

to the notice issued on behalf of the complainant about the dishonor of

the cheque within the stipulated time. Accordingly, the respondent/

complainant filed the present complaint in which the petitioners have

been summoned by the learned Magistrate on the basis of an affidavit

filed by the complainant as evidence.

3. The summoning order reads as under:

KMF Builders Vs. Om Prakash Tiwari

Fresh complaint received on assignment. It be checked and registered.

Present: Complainant/AR with counsel

Affidavit filed by way of evidence C.E. closed. Arguments on summoning of accused heard. Record perused. The cheque, notice and complaint are within limitation. I am satisfied that there are sufficient grounds to summon the arrayed accused u/s 138 NI Act. Therefore, accused be summoned PF & RC with copy of complaint be filed within one week from today for 06.01.2005. Dasti.

MM New Delhi.

18.09.2004

4. According to the petitioners the filing of the complaint on behalf

the respondent is a misuse of process of Court. It is submitted by

them that on 12.07.2004 itself a collobaration agreement was entered

into between the respondent No.2 and M/s Advik Finance & Properties

(P) Ltd. which was a development agreement and one of the conditions

of the said agreement was that:

4. (a)the share of the First Party in Commercial (Lotus) is 693 sq. ft. (35% of total saleable area of 1980 sq. ft. in shops), the cost of which has been agreed at Rs. 1,100/- per wq. Ft., which comes to Rs. 7,62,300/-. The Second Party has paid a sum of Rs. 6,20,750/- earlier as per agreement dated 10th February, 2003 and is now paying the balance amount of Rs. 1,41,550/-to

the Second vide cheque No. 754652 dated 30.09.2003 drawn on Bank of Baroda, Banglore and as such the first Party has now left no right in respect of its share of 693 sq. ft. in the shops being constructed by the Second Party subject to clause 4(c) herein.

(b) The Second Party also, with a view to discharge its liability towards First Party in respect of its share of 3739 sq. ft. (35% of total saleable area of 41891 sq. ft. in Merrigold), which would be available to the First Party on development of Plot No. 9 (Merrigold), has given a cheque No. 754653 dated 12.07.2004 for Rs. 24,30,350/- drawn on Bank of Baroda, Bangalore to the First Party, the cost of which has been agreed at Rs. 650/- per sq. ft.

(c ) It is agreed by and between the parties hereto that if the Second Party exercise its right to sell the area of the plot No. 9 (Merrigold), the amount payable by the Second Party to the First Party as per Clause 4(b) above will become payable forthwith and the Second Party will be entitled to the discount at the rate of 15% per annum for the pre-poned period. In such case Second Party make the payment to the First Party by way of Bank Draft payable at New Delhi in favour of the First Party by way of Bank Draft payable at New Delhi in favour of First party by way of Bank Draft payable at New Delhi in favour of First Party and shall inform the First Party immediately once any such deal is finalized and signed by the Second Party. This condition applies only for 4(b) above.

5. It is also submitted that a letter was received by the petitioners

from KMF informing them that the complainant has not honored their

commitment in having paid exactly the same amount to M/s Advik

Finance & Properties (P) Ltd, i.e., a sum of Rs.24,30,350 for which a

cheque was issued by them to M/s Advik vide notice dated 11.12.2003.

Some of the clauses of that notice are reproduced hereunder

1. That we have recently learnt from reliable source of your having entered into an agreement with M/s KMF Builders & Developers Ltd, 18/2, Kodhihally, HAL,III Stage, Bangalore, in respect of area plot No.9(Merrigold) consisting of 3739 sq. ft. (being 35% of total saleable area of 41819 sq. ft.) in respect of land comprising under Old Survey No. 105/1(Part) and New Survey No.34/1 (Part) situated at Gauripada, Taluka Kalyan, Distt., Thane, the land belonging to us. It has also been learnt that M/s KMF Builders & Developers Ltd., have sold the development rights in respect of the said area to your goodself and that you and M/s. KMF Builders & Developers Ltd., have entered ito and executed an agreement also in respect thereof and which has since been registered in the office of Sub-Regsitrar, Kalyan on 07.10.2003 vide No.5615 of 2003.

2. That it is to bring to your kind notice that the said

entire land belongs to us and initially it was M/s. KMF Builders & Developers Ltd. who had entered into an Collaboration Agreement with us (supplemented by various supplementary agreement) as regards the development project and by virtue of supplementary agreement dated 22.11.1999 and by virtue of supplementary agreement dated 07.07.1995 and further supplementary agreement dated 22.11.1999 and 10.02.2003, copies of all of which are duly enclosed herewith for our kind perusal. M/s. KMF Builders & Developers Ltd. was to pay us a sum of Rs.24,30,350/- in respect of the share of 3739 sq. ft., as aforementioned, and which has since been purchased by you for development and in respect of which M/s. KMF Builders & Developers Ltd. even issued us a post-dated cheque also dated 12.07.2004, M/s. KMF Builders & Developers Ltd. has subsequently agreed and promised by KMF that in case it sells its right in respect of area of plot No.9, Merrigold, it will inform us immediately and that it would further become liable to pay the above amount of Rs.24,30,350/- forthwith subject, however, to the discount 0.15% per annum for any pre-poned period. You can very well ascertain the above from Clause 4(b) and 4(c) of two enclosed agreement dated 12.07.2003.

3. That it is to bring to your kind notice that M/s. KMF Builders & Developers Ltd.had defaulted on both the above counts and besides not informing us regarding its having sold the rights to your goodself, it had not even paid us the said amount of Rs.24,30,350/-. We had sent a demand notice through our Advocates to M/s. KMF Builders & Developers Ltd., copy of which has also been sent to your goodself and the same is quite self- explanatory.

4. That till the time M/s. KMF Builders & Developers Ltd. clears our dues of Rs.24,30,350/- in respect of the area of plot No.9, Merrigold which you have purchased now, it is requested that no construction/development activity be started or carried out at the said plot No.9, Merrigold so as to avoid any legal hassle or ambiguity to either of the sides.

6. It has been submitted that on the insistence of M/s Advik the

petitioners paid exactly the same amount to M/s Advik on behalf of M/s

KMF as they are interested in the agreement entered into between the

respondent/complainant for which they had issued the cheque in

question. Since they made the payment on behalf of M/s Advick with

the consent of respondent No.2 they were not having any liability to

make the payment of the cheque to the complainant and as such they

had informed the complainant in this regard. Yet the complainant took

advantage of the cheque being in their possession as had filed the

complaint. It is submitted that in this manner the complainant is

misusing the process of Court and thus, the complaint, in these

circumstances are liable to be set aside.

7. In nutshell it is the case of the petitioner that the cheque dated

30.06.2004, issued by petitioners to KMF/respondent was admittedly a

post dated one. It was signed on 07.10.2003, i.e., the date when Deed

of Development was executed between petitioners and

KMF/Respondent. The cheque was presented sometimes in July, 2004,

however, in the meanwhile petitioners had already made the payment

of Rs.24,30,350/- to the owner/Advik Finance. Intimation about the

payment was sent to KMF/respondent vide letter dated 22.07.2004.

KMF/respondent was, therefore, aware thereof. Despite having the

knowledge, the complaint was filed on 18.09.2004. It is crystal clear

that KMF/Respondnet has taken undue advantage of the post dated

cheque given by the petitioners and has filed the complaint with

dishonest malafide motives by concealing the material facts relating to

the case.

8. The aforesaid facts amply demonstrates that KMF had developed

malafide intentions of discharging its liability towards Owner/Advik

Finance by paying it Rs.24,30,350/- and therefore instructed its

bankers to "stop payment" in respect of the cheque dated 12.07.2004

issued by KMF to owner/Advik finance. The conduct of the

respondent/complainant speaks about volume of its malafide and

dishonest intentions.

9. It is, thus, submitted that clear that there is a civil dispute

between owner/Advik Finance and KMF with regard to the payment of

Rs.24,30,350/-. Petitioners, in order to avoid further dispute, as per

the advice of KMF, made the payment of Rs.24,30,350/- directly to

owner/Advik Finance. Simply because Petitioners made the payment

of Rs.24,30,350/- to the owner/Advik Finance, KMF, due to personal

grudge and with a view of taking vengeance has filed complaint under

Section 138 of NI Act.

10. It is apparent that the present complaint is nothing but a gross

abuse of the process of law as it has been filed with dishonest malafide

motives by concealing the material facts relating to the facts.

11. The petitioners have relied upon the following judgments:

1) State of Haryana Vs. Bhajan Lal & Ors. 1992 Supp. (1) SCC

2) Inder Mohan Goswami & Anr. Vs. State of Uttranchal and Ors. AIR 2008 SC 251

3) Gorige Pentaiah Vs. State of AP & Ors. (2008) 12 SCC 531

4) G. Sagar Suri & Anr. Vs. State of UP & Ors. (2000) 2 SCC 636

12. Whereas it is the case of the respondent that:

i) The petitioners paid the cheque amount to Advik, without the

knowledge and consent of the respondent/complainant. The

allegation that consent was obtained is false. No material in

this regard has been placed on record by the petitioner. The

respondent was having serious business dispute with the

Advik for which OMP's were pending in Hon'ble High Court of

Delhi and respondent could not have given such a consent.

ii) The agreements dated 12.07.2003 between the respondent

and Advik and agreement dated 07.10.2003 between

respondent and petitioners are independent contracts. The

petitioners were not party to the earlier agreement and Advik

was not a party to later agreement. However, the subject

land was same. Therefore the petitioners can not seek

discharge of their liability under the contract dated

07.10.2003 qua respondent on the ground that they

discharged the liability of the respondent qua Advik under the

agreement dated 12.07.2003. The said alleged discharge is

without the knowledge and consent of the respondent.

iii) It is also in dispute, whether the said payment has actually

been made to the Advik or not because M/s Advik had filed an

OMP 205/2004 wherein he sought recovery of same amount

from the respondent, under the agreement dated 12.07.2004

and a different cheque issued by the respondent under the

said agreement. This OMP was disposed off vide and aorder

dated 27.04.2005 whereby Advik kept its right reserve to

recover that amount from the respondent. Though the

petitioner claim that the amount was paid to Advik on

20.07.2004 but Advik did not inform this fact to the Hon'ble

court and kept its aforesaid right reserve. (Para 8,9,and 10 of

the petition on pages 12-13). The petitioner has not make

Advik a party to the present petition.

iv) The petitioners alleged that the amount was paid to the Advik

vide DD's dated 19.07.2004 against a receipt/declaration

dated 20.07.2004 (available on pages 131-134). However the

cheque issued by the petitioners had bounced prior to that, on

16.07.2004, (para 4 of 138 complaint at page 139B) meaning

thereby the stop payment instructions were issued by the

petitioner much prior to the alleged payment to Advik and

hence no relation between the two.

v) Though it is correct that respondent/complainant was to make

payment of Rs. 24,30,350/- to Advik on 12.07.2004 under the

agreement dated 12.07.2003 for which a post dated cheque

was also issued by the respondent. Since the respondent was

having all intentions to make the said payment, it had

secured a cheque of same amount(cheque in question) dated

30.06.2004 under the agreement with the petitioner.

However, in February, 2004 dispute arose between the

respondent and said Advik and the Resondent had to file OMP

No. 62/2004 against M/s Advik, in Ferbruary, 2004. M/s Advik

also filed an OMP 205/2004 against the Respondent in

May,2004. Owing to the said disputes the respondent issued

stopped the payment of the aforesaid cheque issued in favour

of Advik. ( Para 2, 3 and 4 of the petition on pages 9-10)

vi) The petitioners were aware of the said pending disputes

between the respondent and Advik but despite that payment

was allegedly made to Advik without the knowledge and

consent of the respondent.

vii) The petitioner can not be allowed to argue that 138 is not

maintainable because the cheque was bounced due to "Stop

Payment" and not because of insufficiency ;of funds as the

same has not even been mentioned as one of the "grounds"

of challenge. The complainant proceedings have been

challenged solely on the ground of alleged payment to Advik.

Even otherwise the said fact is matter of trial.

13. It is apparent from the facts and submissions made hereinabove

that the petitioners neither in law nor on equity deserve any

indulgence from this Hon'ble Court and the petition filed by them

deserves to be dismissed with heavy costs, as it is a matter of record

that the petitioners have not impleaded M/s Advik Finance and

Properties (P) Ltd. as a party to the present petition nor have they filed

any document to show that they have paid a sum of Rs.24,30,350/- to

M/s Advik on behalf of the complainant that also with the consent of

the complainant

14. Moreover, payment of a sum of Rs.24,30,350/- by the petitioners

to M/s Advik without the consent of the complainant would not

discharge their liability in respect of the cheque which was issued to

the complainant and, therefore, if the said cheque has been

dishonored either on account of non-availability of the money or

because of the stop payment of the cheque by the petitioners without

any evidence for the time being that the petitioners had money in their

account, the complaint filed by the respondents and the summoning

order of the Magistrate cannot be interfered with at this stage. The

issues raised by the petitioners can always be considered by the

Magistrate while trying the matter, if sufficient evidence is brought on

record to establish that the complaint filed by the complainant was

with a malafide intention or that the petitioner on account of alleged

payment of money to the M/s KMF stood discharged of his liability qua

the cheque issued by them which was issued under an agreement

entered into between the petitioner with the complainant and had

nothing to do with the agreement which the complainant entered into

with M/s Advik.

15. In these circumstances, the defence which have been put

forward by the petitioners in the present petition are matters which are

required to be gone into by way of evidence.

16. The judgments relied upon by the petitioner are also not

applicable in the facts of this case.

17. Thus, the petition is hereby dismissed.

18. Parties to appear before the trial Court on 20.04.2009.

19. Interim orders are vacated forthwith.

MOOL CHAND GARG, J.

APRIL 06, 2009 anb