BALDEV THAKUR Vs. CHANDRASEKHAR PATHAK

JUDGEMENT

(1.) This petition has been preferred under Section 482 of Cr.P.C. for quashing the criminal proceeding pending in the Court of Special Judicial Magistrate, Gwalior, in Criminal Case No.9009/2006 against the petitioner.

(2.) The brief facts of the case are that respondent has filed a private complaint under the provisions of Negotiable Instruments Act against the petitioner alleging that certain amount was due from the petitioner and in part payment whereof a cheque bearing No.656323 dated 31.7.2002 amounting to Rs.75,000/- was given to him. When the said cheque was presented in the bank, it was dishonoured. After giving notice to the petitioner, when the amount was not paid, the complaint has been filed.

(3.) It is submitted by learned counsel for the petitioner that petitioner is the Managing Director of Brinda Builders and Contractors Pvt. Ltd. Father of the complainant executed an agreement in favour of the petitioner on 24.10.2001 with respect to a property situated at Darjioli, Gwalior, which originally belonged to Acharya Nirnaya Das Pathak and after his death, the father of the complainant became its owner being his son. The aforesaid property under the agreement was to be used for constructing a multi-storey building and the sale proceeds whereof was required to be apportioned amongst the petitioner and executor Ranjan Kumar as well as other co-owners, who were consenting party and one of the consenting party was complainant Chandrasekhar Pathak. As per the agreement, the petitioner had given a cheque of Rs.1,50,000/- vide cheque No.967742 dated 6.2.2001 in favour of the complainant. The petitioner as per the terms and conditions was required to make some payment to the other side, therefore, he has given six cheques to the complainant, out of which, two cheques have been encashed by the complainant and in lieu of remaining four cheques cash payment was made to the complainant, of which receipt has been given by the father of the complainant. Thus, remaining four cheques, in view of cash payment, were not required to be deposited by the complainant but cheque No.656322 dated 28.1.2002 was submitted by the complainant in the bank and was encashed. On getting the knowledge of the said fact, the petitioner immediately asked from the complainant regarding such cheating and complaint has been filed by the petitioner, upon which cognizance has been taken against the complainant and his father Ranjan Kumar. In the said cheque, which was dated 28.1.2002, by manipulating the date the complainant changed it from 28.1.2002 to 28.7.2002 in order to keep the cheque in validity period. It is further stated that in view of the agreement amongst the parties, the aforesaid cheque which is the subject matter of the complaint against the petitioner, was a cheque given under the agreement and under the said agreement when the payment was made to the complainant, there was no question of filing complaint. The respondent has suppressed the fact of agreement and levelled allegation that some amount was due from the petitioner. The criminal proceedings, which were filed without there being any liability against the petitioner, are liable to be quashed. It is prayed that the criminal proceedings pending against the petitioner in the Court of Special Judicial Magistrate in Criminal Case No.9009/2006 be quashed in the interest of justice.