Punjab-Haryana High Court
Paramjit Kaur Mutiar vs State Of Haryana And Another on 30 January, 2024
Neutral Citation No:=2024:PHHC:013127
CRM-M-64517-2023 2024:PHHC:013127 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
SR. No.118
CRM-M-64517-2023
Date of decision:30.01.2024
Paramjit Kaur Mutiar
...Petitioner
Versus
State of Haryana and another
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE N.S. SHEKHAWAT
Present: Mr. Nitin Verma, Advocate for
Mr. S.K. Chawla, Advocate for the petitioner.
N.S. SHEKHAWAT, J.
1. The petitioner has filed the present petition under Section 482
of the Code of Criminal Procedure with a prayer to quash Complaint
No.275/23 dated 05.07.2023 under Section 138 of the Negotiable
Instruments Act, 1881 (for short `NI Act') and the summoning order
06.07.2023 (Annexure P-2) passed by Sub-Divisional Judicial Magistrate,
Gohana, whereby the petitioner has been summoned to face trial under
Section 138 of the NI Act.
2. The complaint in the present case was filed by respondent
No.2/complainant by alleging that the present petitioner/accused was
recorded as owner of the double storey house measuring 10 Marlas, situated
at village Udekaran, Tehsil & District Sri Muktsar Sahib. On 23.11.2021, the
petitioner/accused entered into a full payment agreement to sell her house to
respondent No.2 for total sale consideration of Rs.35.80/- lakhs and the
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petitioner had duly executed a receipt regarding receiving the amount of
Rs.35.80 lakhs from respondent No.2, in the presence of two witnesses.
After executing the agreement to sell, in first week of May, 2023, the
petitioner made a call to respondent No.2 and expressed his inability to
execute the sale deed in favour of respondent No.2, due to a family dispute
and agreed to get the full payment agreement cancelled on returning of
consideration amount of Rs.35.80 lakhs. Consequently, the petitioner issued
a cheque bearing No.723775 amounting to Rs.35 lakhs from her account in
favour of respondent No.2. Respondent No.2 deposited the said cheque with
his banker, however, the said cheque was dishonoured with the remarks
"funds insufficient". Respondent No.2/complainant served a statutory notice
through his counsel upon the petitioner, sill the petitioner did not make the
payment of the amount equal to the amount mentioned in the dishonoured
cheque. With these broad allegation, a complaint under Section 138 of the
NI Act was filed by respondent No.2 against the present petitioner.
3. After presentation of complaint (Annexure P-1), respondent
No.2/complainant appeared as CW-1 and exhibited the documents as Ex.C1
to Ex.C5 and the preliminary evidence was closed. Ultimately vide
impugned order dated 05.07.2023, the Court of Sub Divisional Judicial
Magistrate, Gohana summoned the petitioner to face trial under Section 138
of the NI Act. Challenging the complaint (Annexure P-1) and the impugned
summoning order (Annexure P-2), the petitioner has approached this Court
for quashing of the complaint as well as the summoning order.
4. Learned counsel for the petitioner contends that admittedly the
agreement to sell dated 23.12.2021 was executed between the petitioner and
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respondent No.2 and the petitioner had agreed to sell her house, however,
the possession of the house was never delivered by the petitioner to
respondent No.2. After few days, the agreement to sell was cancelled.
Respondent No.2/complainant, who had already taken security cheques from
the petitioner and respondent No.2 had promised to return the cheque and to
destroy the original agreement to sell.
5. Learned counsel further contended that in fact there had been no
actual purchase of the house by respondent No.2/complainant. Still further, it
was unbelievable that agreement to sell was executed on 23.11.2021 and the
period of enforcement of such agreement was three years, which was
unbelievable. Still further, in the present case, no suit for specific
performance of agreement was filed by the respondent No.2. Still further,
respondent No.2 had not explained the mode of payment of Rs.35.80 lakhs
in favour of petitioner. Learned counsel further submitted that the cheque
was alleged to be presented with Axis Bank, Sri Muktsar Sahib for
encashment and in view of the provisions contained in Section 142 of the NI
Act, the complaint was not maintainable before the Court of SDJM, Gohana.
6. I have heard learned counsel for the petitioner at length and
perused the case file minutely.
7. In fact the submissions made by learned counsel for the
petitioner are self-contradictory. On the one hand, the petitioner has admitted
that vide the agreement to sell dated 23.12.2021, the petitioner had agreed to
sell her house to respondent No.2, whereas on the other hand, the petitioner
alleged that there had been no actual or factual purchase of the house by
respondent No.2/complainant. Still further, it has been argued that
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respondent No.2 had already taken a security cheque from the petitioner and
there was a promise to return the cheque to the petitioner. Even the said
submission made by petitioner is highly unbelievable. In fact the payment
was made by respondent No.2 to the petitioner and when the petitioner did
not agree to sell the land/house to respondent No.2, the petitioner issued a
cheque of Rs.35,00,000/- in favour of respondent No.2.
8. Still further, learned counsel for the petitioner wrongly
submitted that the cheque was presented by respondent No.2 at Sri Muktsar
Sahib and the complaint was not maintainable before the Court of SDJM,
Gohana, in view of the provisions contained in Section 142 of the NI Act. In
fact, the petitioner had clearly stated in the complaint that the cheque was
presented by respondent No.2/complainant at Gohana and the intimation
regarding dishonour of the cheque was received by respondent
No.2/complainant from his banker at Gohana. Thus, in view of the
provisions contained in Section 142 of the NI Act, the complaint was
maintainable at the place, where the payee/holder in due course i.e.
respondent No.2 was maintaining his account.
9. Even otherwise, the petitioner has raised several disputed
questions of fact, which can never be adjudicated by this Court, while
exercising the jurisdiction under Section 482 Cr.P.C. The Hon'ble Supreme
Court as well as this Court have held in a catena of judgments that while
deciding a petition under Section 482 Cr.P.C., this Court cannot be permitted
to hold a mini trial and the disputed questions of fact can be adjudicated only
by the trial Court, after permitting both the parties to adduce their respective
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evidence. In fact, such a course can never be adopted by this Court and the
petition in hand is baseless.
10. In view of the above discussion, there is no merit in the present
petition and accordingly, the same is dismissed.
(N.S. SHEKHAWAT)
29.01.2024 JUDGE
mks
Whether Speaking/Reasoned: YES / NO
Whether Reportable: YES / NO
Neutral Citation No:=2024:PHHC:013127
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