ARUN KUMAR MOHATA Vs. MANJUSHREE SINGHI

JUDGEMENT

(1.) The petitioner by filing an application under section 482 of the Criminal Procedure Code, 1973 sought for quashing of the proceedings in case No. C-186 of 2004 now pending before the learned Judicial Magistrate, First Court, Alipore, South 24-Parganas.

(2.) The grievances of the petitioner, as ventilated in the application, may briefly be stated as follows : The constituted Attorney of the opposite party, Smt. Manjushree Singhi, filed an application under section 138 of the Negotiable Instruments Act, 1881 being case No. C-186 of 2004 against the present petitioner on 22nd January, 2004. The petitioner was allowed by the learned Trial Court to be represented by his learned Advocate under section 205 of the Code of Criminal Procedure. The petitioner after obtaining the certified copy of the order-sheet on 23rd February, 2005 came to know that neither the petition of complaint was signed by the opposite party, nor the affidavit in the form of an affidavit under section 145 of the N I Act was affirmed by her. The learned Court took cognizance of the alleged offence on the basis of the affidavit of Prakash Kumar Mohata filed under section 145 of the N I Act. The said section has no manner of application and does not curtail the procedure established by law under the provisions of section 200 of the Code. There could be no legal sanction behind relying on the affidavit of Sri Prakash Mohata purportedly under section 145 of the N I Act as the requirement of law i.e., examination of the complainant and the witnesses present on oath, does not get eclipsed and, as such, the order dated 08.02.2004 issuing process was bad in law. The dispute between the parties is purely of civil nature. It was alleged in the complaint that in pursuance of a purported Memorandum of Agreement, dated 15th October, 2003, the petitioner agreed to pay a total sum of Rs. 14,55,000/- to the opposite party as her settled share in Shree Ratan Mohata (HUF) in respect of certain Bikaner properties and pursuant thereto the petitioner allegedly issued two cheques dated 15th November, 2003 of Rs. 7,27,500/- each to the opposite party and the said cheques were dishonoured on presentation with the remark 'payment stopped by drawer' and the petitioner failed to pay the amount in respect of the said two cheques in spite of service of notice under section 138(b) of the N I Act.

(3.) There was, however, no mention of the facts and circumstances under which the petitioner was compelled to issue such cheques. S. R. Mohata HUF is a Hindu Undivided Family wherein S. R. Mohata, the father of the petitioner, was the Karta. He died in the year 2000 leaving behind his widow, Smt. Sushila Devi Mohata, the mother of the petitioner, his two sons, viz., the petitioner and the said Prakash Kumar Mohata and his daughter, the opposite party herein. Upon death of S. R. Mohata, the petitioner became the Karta of the said HUF. Certain properties in Rajasthan were jointly owned by the said S. R. Mohata HUF and one B. R. Mohata. Pursuant to an award dated 7th May, 2001, certain properties at Bikaner, Rajasthan were exclusively allotted to the said S. R. Mohata HUF. Prakash Kumar Mohata and the opposite party herein filed an execution proceeding, being Execution Case No. 35 of 2002, wherein the Hon'ble High Court appointed a receiver to execute and register a partition deed relating to the properties allotted to the said S. R. Mohata HUF and B. R. Mohata under the Arbitration Award. Prior to filing of the execution case, four members of the Mohata family entered into a family settlement on 16th July, 2001. By such family settlement, it was agreed that the petitioner and his mother would pay to the opposite party a sum equivalent to 6.25% of the sale proceeds of a property at Gajner Road, Bikaner. It was also agreed that the petitioner and his mother would sell the Gajner Road property for meeting the liabilities of a company by the name Universal Conveyer Belting Limited. Pursuant to such family settlement, the petitioner and his mother entered into agreement with a third party for sale of Bikaner properties but by reason of orders passed in the Execution Case No. 35 of 2002, the petitioner and his mother could not complete sale of the Gajner property. In pursuance of orders passed in the execution case, the receiver went to Bikaner for execution and registration of the partion deed between B. R. Mohata and the said S. R. Mohata HUF. The said Prakash Kumar Mohata and the opposite party agreed that during such visit another partition deed would also be executed and registered between the members of S. R. Mohata HUF relating to the properties at Bikaner including Gajner Road property. Accordingly, such partition deed was duly stamped and all arrangements were made for execution and registration thereof on 16th October, 2003. The opposite party executed a power-of-attorney in favour of the said Prakash Kumar Mohata for exeuction and registration of the partition deed. Similarly, the mother of the petitioner executed a separate power-of- attorney in favour of the petitioner for execution and registration of such partition deed. On 16th October, 2003 Prakash Kumar Mohata refused to execute and register the partition deed unless the petitioner executed a purported Memorandum of Agreement dated 15th October, 2003 and issued two separate cheques for Rs. 7,27,500/- each in favour of the opposite party. The petitioner was left with no choice but to execute the said purported Memorandum of Agreement dated 15th October, 2003 and to issue two cheques for Rs. 7,27,500/- each in favour of the opposite party. One of the cheques was dated 15th November, 2003 and the other one was undated. Thus, the cheques were wrongfully and illegally procured by the said Prakash Kumar Mohata from the petitioner. This was duly intimated to the opposite party by letter dated 12th November, 2003 and the opposite party was requested not to encash the said two cheques but to return the same. Upon receipt of the notice under section 138 of the N I Act, the petitioner by letter dated 22nd December, 2003 clearly stated that the opposite party was only entitled to a sum of Rs. 2,60,234/- as 6.25% of the then sale proceeds of Bikaner property and, accordingly, the petitioner sent two separate bank drafts of Rs. 1,30,117/- each to the Advocate of the opposite party. The said bank drafts were, however, returned and the Advocate of the opposite party sent two letters to the Advocate of the petitioner dated 26th December, 2003 and 6th January, 2004 respectively. The petitioner's Advocate replied to the said letters by letter dated 10th January, 2004. The mother of the petitioner filed a suit before the learned Court of Civil Judge (Junior Section) of Bikaner being Suit No. 6 of 2004 for a declaration that the purported Memorandum of Agreement is illegal, unjust, unauthorized and void. A temporary order of injunction was passed against the defendants, which includes the present opposite party, restraining them from using the said purported document in any proceeding until disposal of the Bikaner suit. In view of such order of injunction the opposite party cannot claim any right, title or interest under the same purported Memorandum of Agreement. Thus, the order was passed on the basis of materials, which did not disclose the facts and circumstances as stated. In such circumstances the petitioner prayed for quashing all further proceedings.