Delhi High Court
Anita Sharma vs State Nct Of Delhi & Anr. on 14 January, 2013
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 14thJanuary, 2013
+ CRL.M.C. 2985/2011 & Crl.M.A.No.10534/2011
ANITA SHARMA ..... Petitioner
Through : Mr.Yashpal Singh, Advocate.
versus
STATE NCT OF DELHI & ANR. ..... Respondents
Through : Mr.M.N.Dudeja, APP for the State.
Mr.Surendar Kumar Sethi-
Respondent No.2 in person.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (OPEN COURT)
1. Petition under Section 482 Cr.P.C. has been preferred by the
petitioner for quashing of the summoning order dated 09.06.2009 passed
by the Metropolitan Magistrate, Delhi in C.C.No.3102/2009 titled
Surender Kumar Sethi Vs. M/s Amabica Research and Development Pvt.
and the consequent proceedings.
2. I have heard the learned counsel for the petitioner and the
respondent No.2 in person. Contention of the learned counsel for the
petitioner is that after the issuance of cheque for a sum of `29,893/- to
respondent No.2 as salary for the month of February, 2009, `10,000/- in
cash were paid on account of part payment of salary for the month of
February, 2009. Respondent No.2 did not return the cheque in question
despite promise. The petitioner was ready and willing to pay the balance
amount of `19893/- to respondent No.2 by way of demand draft, copy of
which has been placed on record. The respondent No.2 did not accept the
said amount and filed complaint under Section 138 and 141 of
Negotiatiale Instruments Act alleging that the amount of `1,24,406/- was
due to him. Learned counsel for the petitioner has relied upon the
authorities Alliance Infrastructure Project Pvt.Ltd & Ors. Vs.Vinay Mittal
2010 (1) JCC (NI) 98 and Pepsi Foods Ltd. Vs. Special Judicial
Magistrate 1998 (5) SCC 749.
3. Respondent No.2 contended that `10,000/- were paid as
expenses and were not part salary amount for the month of February,
2009.
4. I have considered the arguments and have examined the
record. It reveals that the complaint under Section 138 of Negotiable
Instruments Act was filed by respondent No.2 when the cheque
No.459428 dated 07.03.2009 for a sum of `29,893/- issued in his favour
by the petitioner was dishonoured on presentation. Vide order dated
09.06.2009, after going through the pre-summoning evidence filed by way
of affidavit, documents, the Trial Court found that prima facie offence
under Section 138 and 141 of the Negotiable Instruments Act was made
out against the petitioner. The petitioner was summoned on 25th July,
2009. Aggrieved with the said orders, the petitioner has filed the petition
for quashing the summoning order.
5. It is not disputed that account payee cheque bearing
No.459428 for the sum of 29,893/- dated 07.03.2009 was issued in favour
of respondent No.2 for the salary for the month of February, 2009. It was
a post dated cheque and was delivered to respondent No.2 on 28 th
February, 2009. Admittedly, on presentation the cheque was dishonoured.
After dishonour of the cheque, respondent No.2 was within his rights to
present the proceedings under Sections 138/141 of Negotiatible
Instruments Act 1881. The petitioner did not put appearance pursuant to
the summoning orders. In the present petition he has claimed that
`10,000/- were paid in cash to respondent No.2 towards the part payment
in relation to the cheque in question on 30.09.2009. The respondent No.2
has admitted receipt of 10,000/- in cash but has stated that it was not
towards part payment of amount/cheque in question. Rather it was the
payment towards expenses incurred by him. In the complaint case also
respondent No.2 claimed a total amount of `1,24,406/- as due from the
petitioner. The plea taken by the petitioner in the present petition is a
matter of fact/defence which requires to be proved before the Trial Court.
This controversy regarding the nature of payment of `10,000/- cannot be
adjudicated in the present writ proceedings. The petitioner has not
produced on record any cogent document to ascertain that this payment of
`10,000/- was part payment towards the cheque amount issued to
respondent No.2. Complaint filed under Sections 138/141 Negotiable
Instruments Act prima facie discloses the commission of offence and the
impugned order based upon the contents of the affidavit and documents
cannot be termed as illegal or irregular. Where prosecution depends
largely on a question of fact under Section 482 Cr.P.C. the court should
not interfere as it would be primarily and essentially within the domain of
the criminal court where the prosecution is pending to arrive at its own
conclusion on appreciation of entire evidence. This Court should not by
using inherent power disturb the findings of fact of the lower court.
6. In the light of the above discussion, the petition lacks merit
and is dismissed. Crl.M.A.No.10534/2011 also stand disposed of.
S.P.GARG, J
JANUARY 14, 2013
sa
