RAJESH AGARWAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application for quashing of a proceeding in Complaint Case No. C/18339/12 under Section 138 read with Section 141 of the Negotiable Instruments Act pending before the Learned Metropolitan Magistrate, 16th Court, Calcutta.

(2.) Learned Counsel appearing on behalf of the petitioner submits as follows. On 23.08.2011 the respondent no. 2 provided a loan of Rs. 15,00,000/- to the petitioner through R.T.G.S. to be repaid on demand along with an interest @ 11% per annum. On 24.08.2011 the petitioner forwarded two post dated cheques, one for Rs. 15,00,000/- in order to secure payment of the principal amount of loan and another for Rs. 37,431/- in lieu of interest from 23.08.2011 to 21.11.2011 after deduction of TDS. Thereafter the petitioner requested the respondent Company for extension of the temporary accommodation loan for a further period at a higher interest rate. In pursuance of the extension, two cheques were subsequently furnished, a fresh one for Rs. 15,00,000/- and the other for further interest. After the expiry of the extended period, the petitioner requested the respondent no. 2 not to submit the cheque because of financial crisis. The petitioner verbally negotiated to pay interest @ 24%. In spite of this, the petitioner received a statutory notice on 16.07.2012 under the Negotiable Instruments Act asking them to pay a sum of Rs. 15,00,000/- within a stipulated time. On 27.08.2012 the respondent no. 2 filed a petition of complaint that led to the registration of the instant case. The respondent Company also filed a winding up petition being No. 306/2012 before this Court for non-payment of a sum of Rs. 13,00,000/- as the adjusted amount after settling of dues. The petition was admitted. Being aggrieved, the petitioner filed APO No. 120/2013 in Company Petition No. 306/2012. The same was rejected by this Court on 19.04.2013. Challenging this the petitioner filed Civil Appeal No. 8258 before the Hon'ble Apex Court. The Hon'ble Supreme Court admitted the appeal and directed the petitioner to deposit Rs. 13,00,000/- with the Calcutta High Court. The same was deposited. Finally, the respondent Company was permitted to withdraw Rs. 10,00,000/- out of it. Therefore, the amount claimed by the respondent Company in the impugned proceeding has already been paid in connection with the appeal decided by the Hon'ble Apex Court on 13.09.2013. Yet, the prayer for dropping of proceedings was erroneously rejected by the Learned Trial Court on 16.11.2017.

(3.) Learned Counsel appearing on behalf of the petitioner/respondent Company submits as follows. The Hon'ble Apex Court had directed the petitioner to deposit a sum of Rs. 13,00,000/- with the Registrar, Original Side, High Court at Calcutta as a condition precedent for admission of the special leave petition. On 13.09.2013 the Hon'ble Supreme Court finally disposed of the appeal recording a resolution of dispute between the parties for the time being i.e., on the premise that the complainant shall not proceed with the winding up proceeding and was permitted to withdraw a sum of Rs. 10,00,000/- while the remaining amount of Rs. 3,00,000/- was directed to be returned to the petitioner Company. The winding up proceeding was dropped. The hearing of the civil suit between the parties being Civil Suit No. 332/2012 was expedited. On 28.03.2014 the complainant amended the written statement, inter alia, making a counter claim for recovery of a sum of Rs. 10,00,000/- and odd after taking into account the above referred payment of Rs. 10,00,000/- by the accused with interest. On 11.12.2014 the Civil Suit filed by the accused Company was dismissed. On 15th December 2014 the counter claim filed by the respondent no. 2 was decreed for a sum of Rs. 9,00,000/- and odd along with interest till realisation. An execution application was filed by the respondent Company. On 06.12.2016 on an application being GA No. 866/2016 filed by the accused Company to set aside the decree, the suit filed by the accused was restored. But the decree passed in the counter claim in favour of the respondent no. 2 remained untouched. Finally on 03.08.2018, GA 939/2017 filed in connection with CS No. 332/2012 filed by the accused Company was disposed of by this Court by keeping the decree dated 15.12.2014 untouched. The matter was referred to mediation, which failed. In the meantime, the proceeding in the case under Sections 138 and 141 of the Negotiable Instruments Act proceeded. Even a date was fixed for arguments by the accused, in default a judgment was to be pronounced. Therefore, it is absolutely incorrect to say that the sum due on the dishonoured cheque had been paid at any point of time. If the Learned Trial Court finds that any sum was paid in lieu of the cheque, the same may be taken into consideration at the time of pronouncement of sentence.