POONAM KHANNA Vs. L K KAUL

JUDGEMENT

(1.) This is a petition under Article 226 and 227 of the Constitution read with Section 482 of the Code of Criminal Procedure for quashing a criminal complaint which was filed by the respondent against the petitioner and others under Section 138 of Negotiable Instruments Act.

(2.) The complaint was filed against (1) Pradeep Khanna HUF, (2) Pradeep Kumar Khanna, husband of the petitioner and (3) Smt. Poonam Khanna. Shri Pradeep Kumar Khanna, husband of the petitioner has died during pendency of the complaint. It was alleged in the complaint that accused No. 1 Pradeep Khanna HUF is the owner of property No. 21, Aurangzeb Road, New Delhi and Pradeep Kumar Khanna, Poonam Khanna and their two minor daughters were the members of that HUF. It was further alleged in para 2 of the complaint that on account of repayment of various loans taken by the HUF through Shri Pradeep Kumar Khanna as its Karta as well as by Shri Pradeep Kumar Khanna and Smt. Poonam Khanna on various occasions and also against payment of consideration of service charges agreed to be paid by the accused persons to the complainant for getting property No. 21, Aurangzeb Road vacated from the erstwhile tenant Sudan Embassy as also against repayment of various expenses incurred by the complainant for maintenance, renovation, electricity, water, security, etc. in respect of the aforesaid property on behalf of the accused persons and in consideration of payment of agreed interest thereon and further in consideration of the mortgage of the said property in favour of the accused persons, they are liable to pay to the complainant a sum of Rs. 43,73,12,233/-. It has been further alleged that in part payment/discharge of the aforesaid debt, accused No. 2 and 3, i.e., Pradeep Kumar Khanna and Smt. Poonam Khanna issued two cheques amounting to Rs. 31,36,73,542/-. Out of them, one cheque for Rs. 21,36,73,542/- was issued by accused Pradeep Kumar Khanna and the other cheque No. 166486 dated 19th January, 2001 drawn on Punjab National Bank, Mehrauli, for Rs. 10 crores was issued by accused No. 3 Smt. Poonam Khanna. It was further alleged that the aforesaid cheques when presented to the bank were dishonoured. The cheque issued by the petitioner Smt. Poonam Khanna was returned by the bank with remarks 'insufficient funds' vide memo dated 20th January, 2001. The complainant also claimed that vide letter dated 29th January, 2001 dispatched on 2nd February, 2001, he sent statutory notices of demand to the accused persons asking them to make the payment of the amount of the aforesaid dishonoured cheques and those notices were duly served upon them.

(3.) The first contention of learned counsel for the petitioner is that since getting the property vacated from a tenant is an illegal purpose as it can be achieved only either by bribing the concerned persons or by use of force, no complaint would lie on account of dishonour of a cheque, if issued towards a liability incurred on account of such an illegal contact. I find that in para 2 of the complaint, the complainant has alleged that the liability of the accused persons arose on account of (i) service charges agreed to be paid by accused persons for getting property No. 21 Aurangzeb Road vacated from the erstwhile tenant; (ii) repayment of various expenses incurred by the complainant for the maintenance, renovation, electricity, water, security, etc. in respect of the aforesaid property and in consideration of payment of agreed interest thereon; (iii) in consideration of the mortgage of the aforesaid property in favour of the complainants. Thus, the service charges payable for getting the property No. 21 Aurangzeb Road, New Delhi was not the sole consideration for issue of cheques by the petitioner and her husband. In fact, when the complaint came in the witness box, he specifically claimed that the accused took loans and had to pay an amount to which came to more than Rs. 55 crores on the date he was examined. Moreover, it is not necessary that the property could be got vacated only by illegal means such as giving bribe and/or use of force. There could be legal ways of getting the property vacated from a tenant. However, I need not dilate further on this aspect for the simple reason that the service charges alleged to be payable to the complainant was not the only consideration alleged in the complaint for issue of cheques in question. In any case, there is a statutory presumption under Section 139 of Negotiable Instruments Act, that the cheque was issued for consideration, though it is a rebuttable presumption.