RITHVIK BHATTACHARJEE Vs. ESKAY TOWER PVT. LTD.

JUDGEMENT

(1.) This is an application where petitioner has prayed for quashing of a proceeding, initiated under Sec. 138 of the Negotiable Instrument Act 1881 (in short N.I. Act) being case no. 15876 of 2019, pending before learned Judicial Magistrate, 16th court, Calcutta. The grievance of the petitioner herein is that the aforesaid complaint under Sec. 138 of the N.I. Act, filed by the opposite party, is amounting to complete abuse of the process of law since neither petitioner has any legal liability to be discharged against the respondent nor the petitioner had issued any cheque in favour of the respondent. The unfilled cheque in question was handed over to one Mr. Dileep Sing Mehata towards security to the amount paid by Mr. Mehata under the Memorandum of Understanding (in short MOU) dtd. 11/12/2009 executed between the petitioner and aforesaid Mahata with regard to one immovable property under litigation. Infact the dispute mentioned in the complaint is purely civil in nature and at most could be raised by Mr. Mehata and not by the present opposite party. Moreover claim is barred by law of limitation.

(2.) The allegation stated in the complaint is that complainant is a company which carries on its business of property development. The accused and the complainant being the purchaser had entered into a MOU on 11/12/2009. The accused stated that he will be a negotiator for transfer and sale of the subject properties to the complainant herein as per terms of condition mentioned in the said M.O.U. Relying upon the said representation and believing the same to be true, the MOU was executed for purchase of the premises in favour of the complainant at a consideration of Rs.17,00,000,00.00. Thereafter the complainant while discharging part of it's obligation under the said MOU from time to time paid the accused aggregating a sum of Rs.1,63,19,180.00. It is further alleged in the complaint that despite receiving the sum of Rs.1,63,19,180.00, the said complainant had failed and neglected to fulfill the obligation as stated in the MOU. Further allegation in the complaint is that on various occasions, the complainant had requested the accused to fulfill commitment and/or refund the said amount of money but the accused deliberately failed to act accordingly. The accused in order to liquated his existing financial liability towards the complainant/company issued a cheque in favour of complainant bearing cheque no. 022643 dtd. 9/10/2018 for rupees one crore drawn on Central Bank of India. The complainant presented said cheque through it's banker for encashment, but the said cheque was dishonored on the ground "fund insufficient". Thereafter complainant issued statuary notice under Sec. 138(b) of the N.I Act thereby interalia called upon the accused to make payment of the aforesaid sum of Rs.1,00,000,00.00 within 15 days from the receipt thereof, but inspite of receiving the said notice the accused did not make the payment.

(3.) Being aggrieved by the impugned proceeding, Mr. Sengupta learned counsel appearing for the petitioner submits that the instant case generates from MOU which was entered into by the petitioner and one Mehata in his personal capacity and the opposite party herein was not a party to such MOU and accordingly he has no locus to file the instant complaint against the petitioner. The blank cheque in question was handed over to Mr. Mehata towards security to the amount paid by him under the MOU dtd. 11/12/2009 and the same was with regard to an immovable property which is under litigation. Mr. Mehata entered into MOU in his personal capacity knowing fully well that litigations are pending in different courts in respect of the property but he started mounting pressure on the petitioner for providing security towards the payment made by him. Accordingly the petitioner handed over the impugned undated blank cheque as security and such cheque was never issued to the complainant in discharge of any legally enforceable debt. It has been further argued by Mr. Sengupta that demand notice dtd. 5/12/2019 addressed to the petitioner clearly speaks that Mr. Mehata sent the same as the Director of M/s Eskay Towers Pvt. Ltd. The said notice further clarified in paragraph 9 that out of Rs.1,63,19,180.00, an amount of Rs.97,50,000.00 was paid through the account of the opposite party and such statement clearly portrays that at no point of time the petitioner had legally enforceable debt of Rs.1.00 crore towards the complainant/opposite party. It is further submitted that if the said payment of Rs.97,50,000.00 is taken into account even then the enforceable debt cannot be Rs.1.00 crore .