SUNIL BEHL Vs. BERLINA CONSTRUCTIONS HOUSE

JUDGEMENT

(1.) THIS judgment would dispose of Criminal miscellaneous No. 10910-M of 1993 as also Criminal miscellaneous No. 10921-M of 1993. Both these petitions Under Section 482 of the Code of Criminal Procedure have been filed by one Shri. Sunil Behl against Berlina Constructions House, Faridabad and Mr. Navneet Sareen respectively for quashing the complaints and the summoning orders of the trial Court summoning the petitioner for alleged offence Under Section 138 of the Negotiable Instrument Act read with Section 420 of the I. P. C. in the first case and Under Section 138 of the Negotiable Instrument Act in the second case.

(2.) I will first take up Criminal miscellaneous No. 1091 H-M of 1993. As per the allegations made in the complaint, the petitioner had approached the complainant Barlina Constructions House for the purchase of some sanitary goods and other hardware items. In lieu of the price of the material worth Rs. 40952. 85/- allegedly purchased by the petitioner, two cheques were issued by the petitioner in favour of the complainant in the sum of Rs. 28218. 55" and Rs. 12734. 30/- on 17. 4. 1991 and 4. 5. 1991 respectively. The cheques were drawn on Oriental Bank of Commerce, Sarvapriay Vihar Branch, New Delhi. The first cheque was presented to the Bank, but the same was returned on 22. 4. 1991 with the remarks 'refer to the Drawer' and again on representation of the cheque, the same was again returned on 26. 4. 1991 with the same remarks. The second cheque was also returned with the abovesaid remarks on 11. 5. 1991. According to the, averments made in the petition, the cheques were repeatedly presented to the Bank on the requests and assuran ces given by the petitioner that the cheques would be encashed. The petitioner-respondent had shown a cheque drawn in his favour in the sum of Rs. 3 lacs and told the complainant that the cheque of Rs. 3 lacs and another cheque of Rs. 1 lac were pending collection and the amount was likely to be credited in favour of the petitioner and the complainant will face no difficulty in encashing the cheques in question if these arc presented again as there will be sufficient funds. On the assurance of the petitioner, the complainant once against deposited the cheque. The first cheque deposited was returned with the remarks 'payment stopped by the drawer' and the second cheque was returned with the remarks 'refer to drawer'. This was so done on 4. 6. 1991. The complainant issued registered notices to the petitioner which were duly served on him on 11. 6. 1991 and 12. 6. 1991 mentioning about the above facts and demanding the payment. Since the petitioner had failed to make the payment within 15 days of the receipt of the notices, a complaint was filed in the Court of Additional Chief Judicial Magistrate, Faridabad Under Section 138 of the Negotiable Instrument Act read with Sections 406/415/420 I. P. C. After recording the preliminary evidence, as observed above, the petitioner was summoned by the trial Court Under Section 138 of the Negotiable Instruments Act read with Section 420 I. P. C. vide order dated 13. 2. 1992.

(3.) ON the other hand, learned counsel for the respondents submitted that the complainant was well within his right to present the cheque to the Bank again and again after the same was dishonoured within the period of validity of the cheque (i. e. six months) and could give a notice Under Section 138 of the Negotiable Instruments Act alter last dishonour and could thereafter launch criminal proceedings if the payment had not been made after the notice. He further submitted that in the present case, there had been assurances given by the petitioner after the dishonour of the cheque that if the cheque was represented, the same would be encashed and it was on the assurances of the petitioner that the cheque was re-presented to the Bank again and again. According to the learned counsel, the authorities relied upon by the petitioner were clearly distinguishable as in those cases there was no assurance placed by the complainant to have been given by the accused to present the cheque again after the dishonour that the same would be encashed. In support of his contention, learned counsel relied upon a Single bench and a D. B. judgment of Andhra Pradesh High Court reported in case of Richard Samsons Sherrat v. Stale of A. P. and Anr. , (1993) 20 Cr. L. T. 495 (A. P.) and in case of Syed Rasool and Sons v. Aildas and Company, (1993) 20 Cr. L. T. 676 (A. P. ).