VRINDAVAN BATHAM Vs. MADAN MURARI

JUDGEMENT

(1.) The applicant has preferred this petition under Section 482 of CrPC being aggrieved by the order dated 11.8.2016, passed by Additional Chief Judicial Magistrate, Gwalior in Complaint Case No. 830/2016, whereby the application filed by the applicant under Section 245 of CrPC has been rejected.

(2.) The brief facts of the case are that a complaint was instituted by the complainant/respondent before the trial Court under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, the 'NI Act') by the respondent against the present petitioner on 18.12.2015. The Judicial Magistrate First Class, Gwalior vide order dated 13.11.2014 passed in Criminal Case No. 1238/2013 sentenced the petitioner for six months imprisonment and fine of Rs.2,50,000/- was imposed, against which an appeal was preferred, i.e., Criminal Appeal No.442/2014, which was dismissed vide order dated 17.3.2015 and order of sentence was confirmed. Against the order dated 17.3.2015, a Criminal Revision No.400/2015 was filed. During pendency of the Criminal Revision No.400/2015, a settlement took place between the parties and both the parties agreed to withdraw the pending litigations and in terms of the settlement, the respondent/complainant received Rs.1,40,000/- in cash from the petitioner/accused and for rest amount, i.e., Rs.1,10,000/-, a cheque of Indian Overseas Bank dated 14.11.2015 was given to the respondent. The present petitioner was signatory to the aforesaid cheque. Later on the cheque was presented for encashment but it was dishonoured and information/memorandum in this regard was sent by the Bank to the respondent on 30.11.2015. As the cheque was dishonoured, second complaint was filed and a case was registered as Criminal Case No.830/2016 for the offence punishable under Section 138 of the NI Act. In this criminal case, the petitioner filed an application under Section 245 of CrPC submitting that the cheque was not given under any liability but it was given during the course of compromise, therefore, the trial court has erred in taking cognizance against the petitioner. The trial Court dismissed the application, which is the subject matter of challenge in the present petition filed under Section 482 of CrPC.

(3.) Learned counsel for the petitioner by placing reliance upon the judgment of Hon'ble Apex Court in the case of Lalit Kumar Sharma and another vs. State of Uttar Pradesh and another, 2008 5 SCC 638, submitted that as the second cheque was given in lieu of the compromise and as the petitioner was already punished in the earlier case, the question of taking cognizance on second complaint does not arise.