ANURAG SHARMA Vs. S. NISHAN SINGH

JUDGEMENT

(1.) BY way of this application, moved u/s 482 Cr.P.C., the prayer has been advanced to quash the order of cognizance dated 1.2.2007 passed by learned Additional Chief Judicial Magistrate, Haldwani, District Nainital in criminal complaint case No. 354 of 2007, S. Nishan Singh Vs. Anurag Sharma. The prayer has also been made to quash the entire proceedings of the said complaint case, instituted u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act" for brevity).

(2.) HAVING heard the learned counsel for the parties, it appears that the petitioner issued a Cheque on 4.12.2006, drawn from his banker ICICI Bank, worth Rs. 2.40 lacs, in consideration of the prospective purchase of some piece of land from Gurbachan Singh (father of the complainant Nishan Singh). At the time of issuing the Cheque No. 986160, an unregistered agreement to sale was executed regarding the Bhumidhari land, situated in village Sitapur, Tehsil Haldwani, District Nainital bearing Khata No. 13 area 6 Bigha. This land was agreed to be sold at the rate of Rs. 4.00 lacs per Bigha to Anurag Sharma.

(3.) IT has been argued on behalf of the petitioner that the provisions of Section 138 of the Act are not attracted in the case in hand, inasmuch as, the same are applicable only when the Cheque is issued to discharge some "debt or other liability", as has been envisaged in the 'Explanation' given under Section 138 of the Act. This explanation further defines the term "debt or other liability", which means a legally enforceable debt or other liability. It has been argued that the payment of the amount of cheque was not a legally enforceable debt or other liability, because the same was issued towards the sale consideration of the piece of land owned by Gurbachan Singh through an unregistered agreement to sale, and as per Section 17 r/w Section 47 of the Registration Act, 1908, for transfer of an immovable property, the agreement must have been registered and that agreement, in order to be a valid contract, should be a bilateral one, while this agreement to sale (Annexure 3 to the petition) is the unilateral one, bearing the signature of Gurbachan Singh only and not of the petitioner. Fortiori, the property in question was already mortgaged by the owner of the land in favour of the Bank prior to entering into agreement on 4.12.2006 and this fact has been admitted by learned counsel of the respondent, nay adverted in the endorsement made by the revenue authorities in the concerned Khataunis (Annexure 4 to the petition). It is also admitted that at the time of entering into agreement or even thereafter, the mortgage was never redeemed from the Bank to enable Sri Gurbachan Singh to honour the terms of the agreement, which he entered into. Thus, all these facts are enough to highlight that the amount of cheque was not in the form of 'payment of a legally enforceable debt or other liability'.