BHARAT KUMAR Vs. RAM SWARATH SINGH

JUDGEMENT

(1.) THIS order will dispose of Criminal Revision No. 91 and 92 of 2000 as they are between the same parties and contain somewhat identical facts and common question of law have been raised.

(2.) THE facts are, however, taken from Criminal Revision No. 91 of 2000. The petitioners, who are complainants before the trial Court filed criminal complaint dated 8. 1. 1999 under Section 138 of the Negotiable instruments Act, 1881 (Act - for short), on the allegation that the petitioners (complainants) and the respondents (accused) had entered into a partnership business of contractors under the name and style of M/s r. S. Singh Electricals. The said partnership was dissolved vide dissolution deed dated 1. 1. 1998 and all the four partners had agreed that the petitioners Bharat Kumar and Sameer Singh to be the outgoing partners and left all the right in the said firm with the accused persons namely ram Swarath Singh and Mrs. Sarita Devi on the payment of various sums of money as contained and incorporated in the dissolution deed. It is not necessary to go into the other aspects of the matter as regards the dissolution. However, it may be briefly mentioned that it was agreed that a sum of Rs. 4,17,050/- should be payable as 50% share of Rs. 8,34,100/-for works completed by the firm upto 1. 4. 1998 and Rs. 1,65,000/- as goodwill of the firm. For the payment of these amounts three cheques were issued by the respondents in favour of the petitioners which were presented and encashed. It was further agreed by the accused persons (respondents) that additional payments on account of sharing of earnest money and security deposit and for the sharing of amounts on works to be allotted for which the tenders had already been submitted, both the complainants (petitioners) shall receive an amount equal to 50% of earnest money and security deposit and also 50% of the amount of works to be allotted for which fenders had already been submitted and had been allotted to the respondents. For this purpose two cheques both dated 31. 10. 1998 for an amount of Rs. 57,425/- and Rs. 1,03,000/-drawn on Punjab National Bank, Sector 28, Chandigarh were issued by the accused (respondents) in favour of the complainants (petitioners) in accordance with the conditions of the dissolution deed dated 1. 1. 1998. These cheques were presented for encashing from the Bank of the accused (respondents), hdwever, the same were not honoured on 31. 10. 1998 on the ground of : payment stopped by drawer. " According to the complainants (petitioners) the same were again presented for encashment but were dishonoured on 27. 11. 1998 on the ground of "insufficient funds. " The complainants (petitioners) on receipt of information of the cheques not being honoured issued and delivered to the respondents a legal notice dated 8. 12. 1998 through their counsel, which was received by the latter on 10. 12. 1998. It is on these allegations that the complaint Was filed. The learned Judicial Magistrate in terms of his order dated 8. 1. 1999 from the oral and documentary evidence led by the complaint, found sufficient grounds to summon the respondents. The respondents on their appe'arance filed an application dated 14. 5. 1999 (Annexufe P-l) for recalling/rescinding the summoning order passed by the trial Magistrate under Section 138 of the Act and for dropping the proceedings. The learned trial Magistrate in terms of his impugned order dated 13. 9. 1999 accepted the said application and dropped the proceedings under Section 138 of the Act The said order, as already noticed, is assailed in this revision petition.

(3.) SHRI Ashok Devgan, learned counsel appearing for the petitioners has contended that the order of the learned trial Magistrate is erronreous for the reasons that it has relied on the judgment of the Hon'ble Supreme court in K. K. Sidharathan us. T. P. Parveen Chandran, 1997 (1)Recent Criminal report 151, which has since been over ruled by the hon'ble Supreme Court in M/s Modi Cement Ltd vs. Kuchil Kumar Nandi, 1998 J. Cr. C. 161 (SC) and, therefore, the impugned order is liable to be set aside and quashed.