K.C. CHANDRASHEKAR RAJU, PROPRIETOR, CHENGAMA RAJU FOUNDATION, C/O THE CHANCERY PAVILION. 135, RESIDENCY ROAD, BANGALORE-560 025 Vs. MAX HYPERMARKET INDIA PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFF

JUDGEMENT

(1.) IN this petition u/s 482 of Cr.P.C., quashing of the proceedings in C.C.No. 35463/10 on the file of the learned XIV Addl. C.M.M., Bangalore, is sought by the petitioner.

(2.) THE brief facts are that, the respondent filed a private complaint alleging offence u/s 138 of the N.I. Act by the petitioner herein and the trial court took the cognizance of the case and directed case being registered against the petitioner and issue of summons to him. It is this order chat is called in question by the petitioner. So far as the complaint is concerned, it is the case of the respondent that, the accused entered into a Memorandum of Understanding with the complainant on 15.3.2007 for development of certain lands and in pursuant to the MOU. the complainant paid Rs. 2,50,00,000/ - (Two crores fifty lakhs) towards the interest free refundable security deposit to the accused and the receipt of the said amount has been acknowledged by the accused. On 31.1.09 the complainant issued a notice to the accused terminating the MOU and praying to refund the security deposit. Effort was also made to take up the matter before the arbitrator and the accused admitted the legal liability to repay the security deposit and an agreement was entered into between the parties on 14.7.2009. Under the said agreement the cheques were to be deposited with Escrow Agent and 10 cheques were deposited with the said agent. The Escrow Agent handed over the cheques to the complainant and out of the 10 cheques, one cheque for Rs. 20 lakhs was honoured by the accused and the remaining cheques on presentation were dishonoured and this was followed by the complainant issuing a legal notice to the accused on 12.11.09. The accused failed to respond to the legal notice, but however did not deny the deposit of the cheques mentioned in the complaint with the Escrow Agent. As the cheques were dishonoured on 14.10.2009 and the accused did not pay the amount under the said cheques to the complainant despite receiving the notice, the complainant had no other go than to file the private complaint u/s 200 of the Cr.P.C. alleging offence u/s 138 of the N.I. Act by the accused.

(3.) THE first contention put forward is that, the cheques were presented by the complainant and those cheques were obtained by unlawful means contrary to the terms of the agreement between the parties and therefore Section 58 of the N.I. Act comes into play. Secondly, it is submitted that the trial court did not consider the complaint averments in detail but had passed the order stating that the complaint was perused and this procedure followed is also contrary to law. It is then argued that the power of attorney has not signed the document and the person who referred to the complaint before the court below was not confident to act as power of attorney on behalf of the respondent. The next contention put forward is that, in respect of the cheques mentioned in the complaint, there ought to have been separate cases registered and the trial court could not have taken all those cheques for consideration on the basis of the only complaint that is lodged by the respondent. Reference was made to Sections 219 and 220 of the Cr.P.C. in this connection and it was contended that the accused at the best could have been prosecuted against a maximum of three cheques only and for this reason also, the trial court order and proceedings are liable to be quashed. The decisions referred to in support of the above submissions are the ones reported in Damodar S. Prabhu Vs. Sayed Babalal H., AIR 2010 SC 1907 , M/s Printo Stick and another Vs. M.L. Oswal, (1997) CriLJ 2122 . Sri K. Venkataramaiah and Others Vs. Sri Katterao, ILR (2008) KAR 474 , Sri K. Venkataramaiah and Others Vs. Sri Katterao, ILR (2008) KAR 474 , Maharaja Developers and Anr. Vs. Udaysingh Pratapsinghrao Bhonsle and Anr., (2007) CriLJ 2207 .