M ARUN AHLUWALIA Vs. ARUN OBEROI

JUDGEMENT

(1.) This is a petition for quashing of order dated 19 th March, 2009 summoning the petitioner in criminal complaint No. 92/5/08 under Section 138 Negotiable Instrument Act (hereinafter referred as NI Act) and the said complaint.

(2.) Before proceeding further, it would be relevant to note the brief facts of the case. The Respondent No. 1and his wife along with M/s May Co. Freight & Travels Pvt. Ltd. were shareholders of M/s Kausauli Resorts Pvt. Ltd. Co. registered at Jalandar City. They were holding 35,000 shares of M/s Kausauli Resort in totality and were Promoter/Directors of the said company. On 25 th August, 2003 the Respondent No.1 along with his wife & M/s May Co. Freight & Travels Pvt. Ltd. sold their shareholding to Captain NP Ahluwalia i.e. Brother of the petitioner & Captain P.S. Chimni for 1,49,79,000 as per MOU dated 25 th August, 2003. It is alleged that the petitioner had discharged this liability in part for purchasing the share holding of M/s Kasauli Resort Pvt. Ltd. of the Respondent. The petitioner had issued 2 post dated cheques bearing No. 624695 dated 31 st January, 2004 for a sum of 3,50,000/- drawn on State Bank of India and other bearing No. 624696 dated 31 st December, 2004 for a sum of 20,00,000/- drawn on State Bank of India, Malviya Nagar, New Delhi. The 1st cheque bearing No. 624695 was duly encashed but the 2 nd cheque became the bone of contention between the parties and for the dishonour of the said cheque Respondent No.1filed the complaint case under Section 138 of NI Act. On 19 th March, 2009 Ld. Senior Civil Judge in Complaint Case No. 92/5/08 issued summons to the petitioner which is the order impugned in the present petition.

(3.) Learned counsel for the petitioner contends that on the averments contained in the complaint and the documents filed therein, no offence under Section 138 NI Act is made out as the cheque issued by the petitioner had not been dishonoured for the reason of insufficient funds or that the amount due thereon exceeds the amount arranged to be paid from that account. It is contended that for an offence to be made out under Section 138 NI Act the dishonoured cheque must be in discharge of a legal liability whereas in the present case there are no particulars contained in the complaint which disclose the alleged liability of the petitioner towards the complainant for which the cheque is said to have been issued. It is urged that the petitioner is nowhere involved in the transaction which took place between the respondent and the brother of the petitioner. The petitioner is not even a signatory to the MOU signed by the respondent and petitioner's brother Captain NP Ahluwalia and Captain PS Chimni. Therefore, there is no legal liability of the petitioner to pay any amount to the Respondent No.1. Reliance is placed on Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. & Ors., 2000 2 SCC 745. It is further contended that the date mentioned on the cheque issued was 31 st December, 2004 which was a loan to the respondent and the same was to be first declared and then presented for encashment. Respondent did not raise the said loan amount till the year 2005 and out of nowhere in the year 2008 issued a notice u/s 138 N.I. Act to the Petitioner. No legal liability of the petitioner existed for which he ought to have paid the money. The said date of 31 st December, 2004 has been altered to 30 th September, 2008 to defraud and blackmail the petitioner. There arises no question of revalidation of the said cheque. Also this aspect has been categorically denied by petitioner in his response to the notice dated 3 rd November, 2008 sent to him by the Respondent No.1 under Section 138 of NI Act. Reliance is placed on Vinod Tanna vs. Zaher Siddiqui, 2002 7 SCC 541 to contend that where the cheque was dishonoured only due to incomplete signature of drawer the same would not attract the provision of Section 138 NI Act. Reliance has been placed upon Om Prakash Bhojraj Maniyar vs. Swati Girish Bhido and others, 1993 78 CompCas 797 Bombay High Court; Mustafa Surka vs. State of Gujarat, Special Criminal Application Nos. 2118 to 2143 of 2009 decided by the Gujarat High Court to contend that for an offence contemplated under Section 138 of NI Act exists only in two contingencies and therefore if the cheque is dishonoured for any third contingency or eventuality the same would not be covered under the provisions of Section 138 of NI Act. Thus, where the cheque is dishonoured due to incomplete signature/illegible or no image found signature or closure of account it would not attract the provision of Section 138 of the Act and hence cannot afford a ground for taking penal action under the said section. Reliance is placed on Raj Kumar Khanna vs. State, 2009 6 SCC 72 to contend that the parameters for invoking Section 138 of the Act are limited and a penal provisions created by reason of a legal fiction must receive strict construction. Such a penal provision enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the Bank unpaid and such non-payment should be for either of the two reasons embodied therein.