BANARSI DAS Vs. MOHINDER KUMAR PAHWA

JUDGEMENT

(1.) BANARSI Dass and his brother Raj Kumar have filed this petition under Section 482 of the Criminal Procedure Code, 1973, for quashing the complaint under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short) and quashing the summoning order passed by Judicial Magistrate First Class, Ludhiana, and subsequent proceedings arising therefrom.

(2.) THE brief facts of the case as gathered from the complaint annexure P-1 are that complainant Mohinder Kumar was the owner of one Maruti car with registration No. PIM-8283. Both the petitioners approached him for the purchase of the car and the deal was settled at Rs. 85,000. The petitioners paid a sum of Rs. 45,000 in cash and Raj Kumar petitioner in connivance with his brother issued a cheque for Rs. 40,000 dated April 28, 1992, drawn on New Bank of India, Jagadhri. A receipt regarding the amount was duly executed and handed over to the petitioners. The complainant had his account with the Bharat Overseas Bank Limited, Ludhiana and he presented the cheque for collection through his bankers. The New Bank of India, Jagadhri, vide memo dated May 26, 1992, returned the cheque unpaid because the amount standing to the credit of that account was insufficient to honour the cheque. The cheque was returned with the memo "refer to drawer". The complainant received intimation regarding dishonour of the cheque on August 1, 1992, and a registered notice was sent to the petitioners on June 2, 1992, vide which a demand for Rs. 40,000 was made. The notice was duly received by the petitioners but they failed to make payment within 15 days of the receipt of the notice. Thus the complaint was filed on July 1, 1992.

(3.) THE petitioners alleged that the car was sold to Kashmiri Metal Works in the year 1990, against full and final payment of Rs. 70,000 and this car was transferred in the name of the firm at the instance of the respondent Mohinder Kumar. The respondent had sworn an affidavit that he had sold his car and had received full and final consideration. Kashmiri Metal Works further transferred that car to one Kulwant Singh on March 5, 1991. The car was not sold for Rs. 85,000 and there was no question of issuing any cheque on April 28, 1992, for the balance consideration. Moreover the cheque that was issued was a self cheque, which was issued by petitioner No. 2 for S. R. Enterprises and there was no liability against S. R. Enterprises as the respondent had no dealings with that firm. The cheque was never issued in favour of the respondent. It was further pleaded that in the present case no notice as required under the Act was ever served upon the petitioners and no demand for the payment of the amount of money was made. In the absence of notice the complaint was not competent. Moreover, the car was purchased by Kashmiri Metal Works of which they were the partners. The cheque was issued by petitioner No. 2 for S. R. Enterprises which was a separate and different concern from M/s. Kashmiri Metal Works. The cheque was taken under pressure to grab the money due to some business rivalry. It was also nowhere alleged in the complaint that the petitioners were in charge of or responsible to the company for the conduct of its business because the car was purchased by the company.