Suresh Kaul vs State Nct Of Delhi & Anr.
2012 Latest Caselaw 2721 Del

*                 THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.M.C. 911/2011

                                         Date of Decision: 25.04.2012
SURESH KAUL                                           ...... Petitioner
                          Through:    Ms.Anuradha Dixit, Advocate.

                                 Versus

STATE NCT OF DELHI & ANR.               ...... Respondents
                 Through: Ms. Fizani Husain, APP
                          Mr.Bimal Roy, Advocate for R2.

                                WITH

+                         CRL.M.C. 912/2011

SURESH KAUL                                        ...... Petitioner
                          Through:    Ms.Anuradha Dixit, Advocate.

                                 Versus

STATE NCT OF DELHI & ANR.               ...... Respondents
                 Through: Ms. Fizani Husain, APP
                          Mr.Bimal Roy, Advocate for R2.


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. These two petitions are filed by the petitioner assailing the summoning orders passed by the learned M.M. dated 3.11.2010 in the two complaints filed against him by his wife i.e. the respondent No. 2

herein under Section 138, Negotiable Instruments Act (for short the 'Act').

2. The undisputed facts of the case are that the petitioner and the respondent No. 2 are husband and wife, but due to their strained relations, they were not willing to live together. The petitioner had given as many as 12 post-dated cheques of Rs. 30,000/- each to the complainant i.e. his wife (respondent No.2), out of which, six cheques on presentation got dishonoured. She gave legal notices to the petitioner, which were replied by him. The complaints were filed by the respondent No. 2, alleging the dishonour of cheques and for non- payment of the cheques' amount despite notices. The learned M.M. issued summons to the petitioner vide his summoning orders, which have been assailed in the present petitions.

3. Earlier, the matter was also referred to mediation to explore the possibility of negotiated settlement. However, the parties could not arrive at any amicable settlement.

4. The main contention on which the impugned orders have been assailed are that the cheques were given by the petitioner to his wife (respondent No.2) for the emotional security as a measure of confidence building so that their marriage is not broken. The said cheques were allegedly not given towards any commercial transaction or for any debt or liability of the petitioner. It was also the case of the petitioner that the cheques were given from joint account which he was having with his wife, the complainant. In this regard, it is submitted that his wife i.e. the complainant was never stopped or prohibited from having access to that joint account and she was free to withdraw any amount that was

required and available and she was dealing with that account by ATM withdrawals and cheques. It is further submitted that he had got the payment of these cheques stopped as she started threatening to use possession of these cheques as an indication of their separation.

5. On the other hand, the submission of the learned counsel for the respondent No.2 are that the cheques were given by the petitioner in discharge of his liability of maintenance of his wife and children and that the account from which the cheques were given, though, was in the joint names of both the parties, but was the personal salary account of the petitioner. It was submitted that these cheques were given in pursuance of the agreement that was arrived at between the parties on 24th November, 2009, but the petitioner later, dishonestly backed out from the same.

6. I have heard learned counsel for the petitioner as also learned counsel for the respondent No.2/complainant and perused the record.

7. Undisputedly, the 12 post-dated cheques of Rs 30,000/- each were given by the petitioner to his wife and 6 of those cheques, which are the subject matter of the two complaints before the Magistrate, got dishonoured on presentation on account of 'stopped payment'. The respondent No. 2 has tried to impute the liability of the petitioner based on Clause (5) of the purported agreement dated 24th November, 2009. This Clause reads thus:

"5. That the husband has paid twelve (12) post dates cheques to the wife to the tune of Rs. 30,000/- (Rupees Thirty Thousand) each towards the household expenses, rent of the flat and other misc. expenses for the child support. However, the same does not

include the charges for educational expenses towards the two sons which the husband agrees to pay whenever the educational bills are being raised. These twelve cheques have been drawn on ICICI Bank Green Park Branch, New Delhi-110016".

8. It is the case of the respondent No.2/complainant that the agreement was prepared, but was not signed by the parties. On the other hand, the case of the petitioner in this regard is that he had already given the cheques to give emotional security to his wife and to build up the confidence in her so as to save the family, but later, when the said agreement was prepared and on seeing which, he found that it was a separation agreement, he immediately got the payment of those cheques stopped. Admittedly, the said agreement was not signed by the parties. That being the situation, the cheques in question could not be said to have been given by the petitioner in pursuance of the said agreement as was sought to be presented by the respondent No.2. Be that as it may, the payment of 12 post-dated cheques of Rs. 30,000/- each by the petitioner to his wife could not be said towards discharge of his any debt or liability, which was the basic and fundamental ingredient of Section 138 of the Act. Of course, the respondent No. 2 had legal right to claim maintenance from her husband (petitioner) under Section 125 CrPC, but admittedly, there was neither any petition nor any order made by any court granting her maintenance from her husband. The cheques in question could not be said to have been given by the petitioner to her in pursuance of any legal order under Section 125 CrPC or otherwise. If the cheques would have been given by the petitioner to her in pursuance of any such legal order, the situation would have been different. That

being not the factual position in the present case, such situation need not be further discussed.

9. In the entire factual matrix, the cheques in question which were given by the petitioner to his wife could be said to have been given by him as towards his moral and social responsibility. Though, there was an element of legal liability also, but, that would be of civil nature. No element of criminality could be seen to have been attracted in such facts and situation. The respondent No. 2 seems to have taken recourse to these complaints to settle some different scores against the petitioner. The complaints filed by the respondent No. 2 would fall within one of the illustrative categories indicated by the Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335, warranting the exercise of power of this court under Section 482 CrPC. Though, I am conscious that the inherent powers under Section 482 CrPC should not be exercised to stifle the legitimate prosecution, but, at the same time, it is also the duty of this court to prevent unnecessary harassment from the illegitimate prosecution, which has been launched instead of having resort to the remedy of civil nature.

10. In view of my above discussion, I deem it a fit case to invoke the inherent power under Section 482 CrPC and to set aside the impugned summoning orders of the M.M. in both the complaint cases filed against the petitioner by the respondent No.2. Accordingly, the petitions are allowed and the impugned summoning orders are set aside.

11. Petitions stand disposed of.

M.L. MEHTA, J.

APRIL 25, 2012/akb