NANO KERNEL LIMITED Vs. INTERLACE INDIA PVT.LTD.

JUDGEMENT

(1.) This Miscellaneous Petition is filed praying to allow the perjury proceedings against Mr.G.Ambalavanan, President, Interlace India Pvt. Ltd. under Sec. 340 r/w. Sec. 195 (1) (b) (i) of Cr.P.C, 1973 for committing the offences punishable under Ss. 193 and 199 r/w. Sec. 191 of IPC.

(2.) Learned counsel for petitioners submitted that petitioners filed Criminal Original Petition No.20154 of 2022 to quash the proceedings in C.C.No. 5155 of 2013 on the file of learned Metropolitan Magistrate (FTCIII), Saidapet, Chennai. Respondent gave false evidence by filing a false complaint dtd. 17/1/2013 and recording a sworn statement on oath before learned Magistrate, Saidapet on 17/10/2013, for the purpose of being used to institute and proceed with the criminal proceedings against petitioners under Sec. 138 of Negotiable Instrument Act, 1881. Respondent falsely stated in his complaint dtd. 17/1/2013 and thereafter, on oath before the learned Magistrate on 17/10/2013 that M/s. Interlace India Pvt. Ltd. had supplied goods and services to petitioners on various dates and against which, petitioners had issued a cheque bearing No.661755 dtd. 17/8/2012 for Rs.2,00,00,000.00 (Rupees Two Crores only) and it was dishonoured and returned to respondent's Bank in Chennai on 14/11/2012. Petitioner Company and respondent Company had entered into a Turnkey Agreement dtd. 20/1/2011, wherein petitioner Company had agreed to supply goods and services to respondent Company on 100% advance payment basis. Accordingly, petitioner had issued an undated cheque bearing No.661755 for Rs.2,00,00,000.00 (Rupees Two Crores only) on 12/1/2011 to respondent as security towards first instalment of advance payment of Rs.2,00,00,000.00 (Rupees Two Crores only) received from respondent, as per terms of above Agreement dtd. 20/1/2011. The above Turnkey Agreement dtd. 20/1/2011 was subsequently cancelled on mutual consent through the execution of Tri-Party Business Agreement dtd. 23/5/2011, wherein all the rights and liabilities of petitioner Company, arising out of Turnkey Agreement dtd. 20/1/2011, were transferred in favour of an incoming party M/s.Applied DSP Pvt. Ltd., Chennai. As per this Agreement, petitioners had been fully discharged from all the rights, liabilities and obligations associated with Turnkey Agreement dtd. 20/1/2011. It was clearly provided in that Agreement that respondent shall return the Cheque bearing No. 661755 to petitioners. However, respondent did not return the cheque even after specific request from petitioners. Respondent fraudulently used this cheque for filing this case by suppressing the material facts like Turnkey Agreement dtd. 20/1/2011 and Tri-party Business Agreement dtd. 23/5/2011. Respondent had fraudulently filed the complaint under Sec. 138 of Negotiable Instruments Act, 1881 on false grounds. Therefore, respondent has committed criminal offence punishable under Ss. 193 and 199 read with Sec. 191 of IPC and liable to be proceeded under Sec. 340 read with Sec. 195(1)(b)(i) of Cr.P.C. 1973. Therefore this petition. In support of his submission, he pressed into service the judgment of the Hon'ble Supreme Court in Perumal ..vs.. Janaki reported in (2014) 5 SCC 377.

(3.) In reply, learned counsel for respondent submitted that the judgment cited by learned counsel for petitioners is not applicable to the facts and circumstances of the case, for the reason that that was a case, where the victim was wrongly prosecuted and then acquitted. In the said circumstances, the Hon'ble Supreme Court has held that, "The High Courts being constitutional courts invested with the powers of superintendence over all the courts within the territory over which the High Court exercises its jurisdiction is certainly a court, which can exercise the jurisdiction under Sec. 195(1)." In the case before hand, the case instituted under Sec. 138 of Negotiable Instruments Act in C.C.No.5155 of 2013 on the file of learned Metropolitan Magistrate (FTC-III), Saidapet, Chennai, is still pending. The allegations and counter allegations have to be tested before the Court on the basis of evidence. Only after that, it can be stated that whether this is a case based on false complaint or true complaint. This petition filed now is a pre-mature one and liable to be dismissed.