SIDHARTH SINHA Vs. BHAGWANDAS YADAV

JUDGEMENT

(1.) PETITIONER has challenged the order dated 1.8.2011 passed by JMFC Bhopal (Smt. Shashi Singh) in R.T. No.9769/2011 by which prayer of the petitioner was not accepted and charge for offence punishable under Section 138 of Negotiable Instruments Act ( hereinafter it is mentioned as 'Act") was framed The petitioner has also challenged the order dated 4.11.2011 passed by IV th Additional Sessions Judge, Bhopal in Criminal revision No.532/2011 by which the order passed by the trial Court was confirmed. The petitioner has also prayed for quashing the trial of case RT. No.9769/2011 pending before the trial Court. The respondent/complainant has filed a complaint before the trial Court that the petitioner has issued a cheque for payment of a sale of the property which was purchased by the petitioner but, that cheque was dishonored. A notice was given by the respondent to the petitioner but, no payment was made thereafter. Consequently, the respondent/complainant has filed a complaint for offence punishable under Section 138 of the Act. The petitioner prayed before the trial Court that cheque was issued as a consideration of contract to sale of a land and therefore, that consideration does not come within the purview of Negotiable Instruments Act. One Danish Housing Co-operative Society Ltd. (in short 'Danish Society') has also filed a civil suit to declare the sale deed to be void. Learned JMFC vide order dated 1.8.2011 found that it was the summons trial and there was no power of review to the Court of JMFC and therefore, prayer of the petitioner cannot be accepted. Consequently, the prayer was rejected and charge for offence punishable under Section 138 of the Act was framed. In revision learned Additional Sessions Judge dismissed the revision. Learned counsel for the petitioner has submitted before this Court that the land sold by the respondent was not of the respondent whereas, it was of some Danish Society. Danish Society has moved a civil suit to get the sale deed cancelled. Consequently, since no possession was given to the petitioner of the said land and therefore, he was not bound to pay the same. According to the provisions of Section 55(4)(b) of the T.P. Act, seller can get money after handing over the possession to the buyer and therefore, the petitioner was not bound to pay the money prior to getting the possession of the property. Danish Society has filed a suit for cancellation of the sale deed and therefore, complaint under Section 138 of the Act is not maintainable and it may be quashed. Learned counsel for the petitioner has placed his reliance upon the order passed by this Court in the case of "Puranmal Badrilal Gupta and another Vs. State of U.P and others" (2007 CRI.L.J 426) and order passed by a single Bench of the Bihar High Court in the case of "Brahamdeo Sah Vs. The State of Bihar" (2010 CRI.L.J 2907) to show that the petition under Section 482 of Cr.P.C is maintainable.

(2.) LEARNED counsel for the respondent submits that a cheque was issued and sale was executed. If the petitioner was not interested to pay the sale amount then why the cheque was issued. Secondly after issuance of a notice that cheque was dishonored. The petitioner did not take any step and therefore, a complaint was filed. All the objections raised by the petitioner are subjected to the evidence adduced by him before the trial Court. He has not shown any reason as to why he did not reply to the notice given by the complainant. Under such circumstances, complaint cannot be quashed in such a manner. After considering the submissions made by learned counsel for the parties and looking to the various documents filed by the parties for perusal of this Court, it appears that a cheque was issued for sale amount in a sale of a particular property and that cheque was dishonored. Notice was issued to the petitioner but, petitioner did not take care to reply it and therefore, a complaint was filed before the competent Magistrate. If the petitioner was not liable to pay any sum before getting possession of the land then why a cheque was issued for payment of that sum. This question is unanswered from the side of the petitioner. There is no copy of agreement submitted with the petition because there was an oral contract. However, it was for the petitioner to prove prima facie that payment was to be made after getting the possession of the land but, it is not apparent from the face of record otherwise, the petitioner could not have issued a cheque for payment of the sale amount. Under such circumstances, it would be dependent upon the evidence that whether such a term or condition was applicable in the present transaction or not. Similarly, it is yet to be considered by the trial Court that whether the payment was stopped in a bonafide manner or the petitioner took a somersault and obtained that land from Danish Society. However, it is apparent that he issued a cheque for payment and same was dishonored and after getting the notice, no payment was made by the petitioner. No explanation was given in writing to the reply to that notice. Under such circumstances, at present it cannot be said that no offence punishable under Section 138 of Act is made out against the petitioner. The objections raised by the petitioner are dependent upon the factual position of the case and evidence which is yet to be adduced before the trial Court. Under such circumstances, the complaint (trial) pending before the JMFC, Bhopal cannot be quashed without any basis. It is for the petitioner to raise all such objections before the trial Court during the trial.