GULSHAN RAI Vs. ANIL KUMAR

JUDGEMENT

(1.) THIS order will dispose of three connected Criminal Miscellaneous Nos. 8855-M of 1991, 8857-M of 1991 and 8859-M of 1991, brought under Section 482 of the Criminal Procedure Code for quashing of three complaints, brought by the respondent against the petitioner for offence under Section 138 of the Negotiable Instruments Act, 1881 (as introduced by the Banking, Public Financial Institutions and Negoitable Instruments Laws (Amendment) Act, 1988), (for brevity " the Act " ). The petitioner also seeks the quashing of the summoning order dated July 1, 1991, passed by the Judicial Magistrate, I Class, Karnal, in these complaints.

(2.) THE brief facts leading to the litigation may be enumerated. In 1988 a private limited concern, known and styled as Sai Beverage Pvt. Ltd. , was floated and a piece of land was purchased in District Sonepat, while its registered office was situated at 43 Km. Stone, Karnal GT Road. Disputes having arisen, civil litigation started which culminated in a compromise. Under the terms of the compromise, the petitioner agreed to pay a total sum of Rs. 10,00,000 to the respondent and his associates through instalments. The respondent had to hand over the shares issued in his name and in the names of his associates. Post-dated cheques were issued. The cheques in dispute in the three complaints are : two cheques dated February 15, 1991, each for Rs. 1,00,000 ; a third cheque dated April 15, 1991, for Rs. 1,50,000 and a fourth cheque dated May 15, 1991, for Rs. 1,50,000. These cheques, when presented to the bank, were dishonoured, as the funds were not arranged for. The respondent claims to have served the necessary notice and the payments nut having been made, he has initiated prosecution.

(3.) THE fact that the cheques were post-dated is not disputed. However, there is a dispute as to the date when these were issued. According to the petitioner, the cheques were issued on March 12, 1990, while according to the respondent, they were issued on March 5, 1990, at the time of execution of the compromise deed. The case of the petitioner is prima facie corroborated by a reference to receipt P-i issued by the respondent in favour of the petitioner and P-2 issued by the petitioner in favour of the respondent, read along with Clause 1 whereby it had been agreed between the parties that :