AMITOSH MOITRA Vs. RAM PRAKASH

JUDGEMENT

(1.) This petition under Section 482, Cr.P.C. challenges the order dated 6.1.2004 by which the application of the petitioner for recalling the order summoning him as an accused in a complaint case under Section 138 of the Negotiable Instruments Act was dismissed. Before coming to the grounds on which the order is sought to be set aside, it is necessary to recall the case of the respondent as made out in the complaint. Copy of the complaint, which was sought to be quashed, was not filed with the petition. Only at the end of the arguments of the learned Counsel for the petitioner, the copy of the complaint was provided to the Court by the respondent. As per this complaint, two cheques issued by the petitioner being cheque Nos. 852901 and 852902 were dishonoured with the remarks "payment stopped by the drawer". Respondent alleges in the complaint that the petitioner was in occupation of premises of D- 9/4, Okhla Industrial Area, Phase-I, New Delhi owned by the respondent on a leave and licence agreement on monthly charges of Rs. 75,000/- for the period of 1.1.99 to 31.12.2000 and thereafter on monthly charges of Rs. 84,000/- per month, that the petitioner stopped using the premises in November, 2001 when a sum of Rs. 4,75,244/- towards occupation charges apart from charges for electricity and water consumption were due, that the two cheques were issued towards occupation charges, that the cheques were deposited on 31.1.2002 by the respondent in his own bank namely Central Bank of India, Sukhdev Vihar, New Delhi which were returned with the dishonour memo dated 5.2.2002 and that the respondent thereafter called upon the petitioner to pay the amount covered by the cheque vide a notice dated 8.2.2002.

(2.) The ground for quashing the complaint are that the two cheques in question for the sum of Rs. 58,450/- each were towards advance payment of rent which remained in the hands of the respondents even after the premises were vacated by the petitioner in October, 2001, that the cheques were therefore not for any existing debt or liability but only to be used towards rent for the months subsequent to October, 2001, that the application of the petitioner enumerating these facts submitted before the trial Court was not replied to by the respondent and thus not denied, that it was in fact the respondent who was liable to refund the security deposit and other charges and that in view of these additional facts, the trial Court should have recalled the summoning order.

(3.) It is conspicuous that none of the grounds refer to any inherent defect in the complaint. This explains why the copy of the complaint was not filed by the petitioner. In fact during arguments also no reference to the contents of the complaint was even made by his Counsel. At the time of argument, learned Counsel for the petitioner submitted that the complaint was an abuse of the process of law. In order to assert his point, he reiterated the facts alleged in the petition under Section 482, Cr.P.C. namely that the cheques were towards advance payment and that the occasion to encash the cheque had not arisen as the petitioner who was occupying the premises owned by the respondent had vacated the property before the period for which those cheques had been given. Therefore, in order to appreciate the plea raised by the petitioner, the Court has to put the case of the petitioner on trial.