Bansal Paper Mart & Anr. vs State & Anr.
2009 Latest Caselaw 423 Del

                  "REPORTABLE"
*           HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.M.C.3000/2007

                               Reserved on: October 21, 2008
                             Pronounced on: February 06, 2009

#     BANSAL PAPER MART & ANR.                    ..PETITIONER

!                  Through :            Mr. Pankaj Seth,Adv.

                               Versus

$     STATE & ANR.                            ...RESPONDENTS

^                  Through :            Mr.M.P.Singh,APP
                                        Mr.M.K.Shah,Adv.for R2

%
      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.

1. Impugning the order of the trial court dated

31.08.2005 and consequent notice under Section

251 Code of Criminal Procedure (hereinafter

referred to as „Cr.P.C‟.) dated 10.04.2007, present

petition has been filed by the petitioners seeking

quashing of Criminal Complaint; case No. 1327/1 of

2005 filed by respondent No. 2 against the

petitioners.

2. Petitioners and the complainant (respondent No. 2

herein) had business dealings with each other for

sale and purchase of papers and stationery

products. Respondent No.2 had maintained a

running account of the petitioner in its books of

accounts. Petitioners issued cheque No. 003690

dated 1.6.2005 for a sum of Rs.1,49,474/- drawn on

Lord Krishna Bank against bill No. 3103 raised by

the respondent. This cheque, on presentation to

the Bank, was dishonoured with the remarks

"insufficient funds" vide Memo dated 5.7.2005. A

legal notice dated 22.07.2005 was served upon the

petitioners by the respondent. This notice was duly

replied by the petitioners through their Advocate

on 5.8.2005. Since petitioners failed to make

payment of the dishonoured cheque despite serving

the aforesaid notice, a complaint under section 138

of the Negotiable Instruments Act (hereinafter

referred to as "the Act") was filed by the

respondent. On the basis of pre-summoning

evidence, trial court took cognizance of the offence

and summoned the petitioners vide his order dated

30.08.2005. On appearance of the petitioners in

the Court, the Court served notice under Section

251 Cr.P.C. upon the petitioner on 10.04.2007.

3. Petitioners have challenged the maintainability of

the complaint as well as the order of the trial court

dated 31.08.2005 and the notice dated 10.04.2007

on the grounds that petitioners had already made

payment of the impugned cheque even before the

receipt of legal demand notice and no cause of

action survived in favour of the respondent for

filing the complaint under Section 138 of the Act.

4. It is argued by Mr. Pankaj Seth, learned counsel for

the petitioners that two cheques for Rs. 2,98,948/-

and Rs. 1,49,474/- being cheque Nos. 003686 and

003690 respectively were issued in favour of

respondent No.2 by the petitioners against the

dishonoured cheque No. 003690 for payment of bill

No. 3103 and the respondents had already received

the payment of the said cheques even before the

notice dated 22.07.2005 was served upon the

petitioners by the respondents through their

Advocate. Since payment had already been

received by the respondent against the impugned

dishonoured cheque; the respondents, suppressing

this vital fact, filed the complaint with a view to

harass the petitioners and to pressurize them to

extort some undue money from the petitioners.

5. Mr. M.K. Shah, learned counsel for respondent

No.2 has submitted that a running account was

maintained by the respondent regarding the

business transactions with the petitioners and in

the ledger account, the payments, when received

from the petitioners, were duly credited in their

account; since a running account was maintained,

the payment received from the petitioners by way

of pay order No. 195429 drawn on Corporation

Bank amounting to Rs. 2,60,000/- and pay order

No. 1515 drawn on Lord Krishna Bank for Rs.

1,88,422/- both dated 22.06.2005 were credited in

the account of the petitioners and duly accounted

for. These payments in no manner could be treated

to have been made against the dishonoured

cheque; the respondent was within its rights to file

the complaint on the basis of the dishonoured

cheque which was for due consideration.

6. In their reply dated 5.8.2005, the petitioners have

specifically stated that the impugned cheque was a

post dated cheque issued in favour of the

respondent on an assurance that the said cheque

would be presented after intimation and sufficient

notice to the petitioners. It is also specifically

stated in the reply that the amount of the impugned

cheque was paid by way of two pay orders for a

total sum of Rs. 4,48,422/- which included payment

of Bill No. 3103. Relevant paras of the reply read

as follows:

"3-5. With reference to the contents of para 3 to 5 of your legal notice, we have been instructed to inform you that our clients were willing to make immediate payment and it was only at the request of your clients post dated cheques were issued by our clients in favor of your clients. The same were given upon assurance of your clients that the same will be presented after

intimation and sufficient notice to our clients. In fact we on behalf of our clients wish to inform you that two cheques of Rs.2,98,948/- and Rs. 149,474/- being cheque No. "003686" and "003690" respectively were issued to your clients by our clients at their request. The aforesaid cheque no. "003690" was issued against Bill No. 3103.

7. Our clients upon intimation of dishonor of cheques from its bank immediately instructed its bankers to issue 2 pay orders in favor of your clients. The same being Pay Order No. "195429" drawn on Corporation Bank amounting to Rs.2,60,000/- and Pay Order No. "1515" drawn on Lord Krishna Bank amounting to Rs.1,88,422/- both dated 22.06.05 have been since handed over to your clients who have duly acknowledged its receipt and appropriated the said amounts without any protest."

7. The petitioners, therefore, denied any liability to

pay a sum of Rs.1,49,474/- being the amount of the

dishonoured cheque No. 003690. Petitioners had

raised this defence before the trial court and they

produced the receipt of the above said pay orders

before the court with a copy to the counsel for

took adjournments for verification and thereafter

for filing some documents show that receipt of the

payment made by petitioner No. 2 was

inadvertently issued by the concerned record clerk

of the respondent. Despite having taken

adjournments, respondent No. 2 failed to submit in

the court any verification report of the receipt and

also failed to file the documents indicating the

circumstances in which the said receipt was issued.

Under these circumstances, the receipt dated

22.06.2005 becomes relevant and crucial document

for the court to consider if, the payment of the

impugned cheque was duly made by the petitioners

by way of two pay orders.

8. Execution of this receipt by Amit Bansal, an

employee of the respondent is not in dispute. This

receipt is addressed to the petitioners duly signed

by Amit Bansal for respondent No. 2. The contents

of the receipt are reproduced as below:

"........Thanks to received 2 pay orders for the amount Rs. 2,60,000/- No. 195429, Drawn on Corpn. Bank, G.K.II & Rs. 1,88,422/- No. 1515 drawn on Lord Krishna Bank, Kalkaji, Total Rs.448422/- against ch.nos. 003686 & another Ch.No.-003690 for Rs. 1,49,474 in favour of M/s. KCT &

Bros (c.s.) Ltd. Total amount Rs. 448422/-.........."

9. Bare reading of this receipt makes it clear that two

pay orders being pay order No. 195429 for Rs.

2,60,000/- drawn on Corporation Bank, G.K.II and

another pay order No. 1515 drawn on Lord Krishna

Bank, Kalkaji for Rs. 1,88,422/- were admittedly

received by the respondent as payment against

cheque Nos. 003686 for Rs. 2,98,948/- and cheque

No. 003690 for Rs. 1,49,474/-, the total amount

being Rs. 4,48.422/-. Both these pay orders have

been got encashed by the respondents. The

impugned cheque was issued against Bill No. 3103.

As per this receipt, the payment of the impugned

cheque was immediately made to the respondent

when petitioners came to know that the said

cheque on presentation was dishonoured. Since

the pay orders were received by the respondent

against two particular cheques, it is not acceptable

that the payment made by the petitioners by way of

pay orders was in account for other business

transactions, especially when petitioners have not

been able to file any document on the record to

indicate that the payment as made by the

petitioners was against some other transactions or

was in account.

10. The acknowledgement receipt bonafidely issued by

a responsible officer of the respondent company on

the letter head of the company cannot be ignored

and brushed aside by the Court, especially when its

authenticity and genuineness is not in dispute. The

copy of the ledger book placed on the record by the

respondent only reflects the debit entry pertaining

to the dishonoured cheque but does not indicate

credit entries of the payment received from the

petitioners by way of the above said two Pay

Orders. After receipt of the payment against the

impugned cheque, no cause of action subsisted in

favour of the respondent company against the

petitioners. The payment was undisputedly

received before filing of the complaint. The

respondent company, therefore, had no right to file

the impugned complaint under Section 138 of the

Act as on the date of filing of the complaint the

liability of the petitioners against the impugned

cheques stood liquidated. The complaint is nothing

but misuse of process of law on behest of the

respondent company with a view to pressurize the

petitioners to make payment of amount which

might be due from them to the respondent

company for other business transactions. The

complaint, therefore, under the circumstances, is

not maintainable being without any cause of action.

11. Consequently, in the light of the discussion as

above, the petition is allowed. The Complaint Case

No. 1327/1 of 2005 and summoning order dated

31.08.2005 passed therein as well as notice dated

10.04.2007 framed under Section 251 Cr.P.C. and

other consequential proceedings recorded in the

complaint are hereby quashed.

Attested copy of the order be sent to the trial court

as well as to the State.

ARUNA SURESH (JUDGE) February 06, 2009 rd