RENUKA WALIA Vs. RAKESH KUMAR AND ANR

JUDGEMENT

(1.) This petition has been filed under Section 482 of the Code of Criminal Procedure ("CrPC" - for short) seeking quashing of complaint No. 449/2 dated 28.2.2009 (Annexure P2) filed by Rakesh Kumar (respondent No. 1) against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 ("NI Act" -for short) and for quashing the summoning order dated 14.3.2009 (Annexure P4) whereby the petitioner has been summoned by the court of learned Judicial Magistrate Ist Class, Panchkula.

(2.) Respondent No. 1 filed the impugned complaint (Annexure P2) against the petitioner alleging that the petitioner represented to him that she is the owner in possession of flat No. 210 GH-34, 2nd Floor, MDC, Panchkula and that she wanted to sell the said flat. The complainant/respondent No. 1 showed his willingness to purchase the same. A receipt-cum-agreement dated 15.8.2008 in favour of the complainant/respondent No. 1 was executed. The complainant/respondent No. 1 paid a sum of 5,50,000/ - as earnest money to the petitioner against the entire sale consideration of 25,50,000/ -. The petitioner received the same in the presence of marginal witnesses. The last date for execution and registration of the sale deed was fixed as 31.12.2008. It was agreed that the petitioner would obtain No-Dues Certificate and No-Objection Certificate for execution of the sale deed in favour of the complainant/respondent No. 1 and in case she (petitioner) fails to perform her part of the contract, then she would be liable to pay double of the earnest money to the complainant/respondent No. 1. It is alleged by the complainant/respondent No. 1 that the petitioner failed to perform her part of the contract. As such she was liable to refund double of the earnest money. The complainant/ respondent No. 1 requested the petitioner to execute and register the sale deed in respect of the property or to refund double of the earnest money as agreed by the petitioner in terms of the receipt-cum-agreement to sell. In order to discharge her liability, the petitioner issued an account payee cheque No. 077788 dated 20.1.2009 for an amount of 11 Lacs drawn on the Bank of Punjab Limited, DC Model School, Sector-7, Panchkula in favour of the complainant/respondent No. 1 with the assurance that the cheque would be encashed on its presentation to the bank. The complainant/respondent No. 1 as per instructions of the petitioner presented the cheque for encashment to his banker i.e. Centurion Bank of Punjab Limited, Panchkula. The said cheque was, however, returned back unpaid and dishonoured vide memo dated 24.1.2009 with the remarks of "insufficient funds". Information regarding this was received by the complainant/respondent No. 1 from his bankers. The complainant/respondent No. 1 contacted the petitioner and informed her about the dishonour of the cheque but she paid no heed to the requests of the complainant. Ultimately, the complainant/respondent No. 1 served a legal notice dated 5.2.2009 (Annexure P3) which was posted on 7.2.2009 under Registered AD and under postal certificate. The legal notice has been duly served upon the petitioner. However, in spite of the notice, the petitioner failed to make the payment of loan amount either within a period of 15 days from the date of receipt of the notice or till date. Accordingly, the complaint was filed.

(3.) The learned Judicial Magistrate Ist Class, Panchkula in terms of order dated 14.3.2009 (Annexure P4) has summoned the petitioner. The said complaint (Annexure P2) and the summoning order dated 14.3.2009 (Annexure P4) are assailed by the petitioner.