PRESENT KHADI UDYOG BHANDAR, HAMIRPUR ROAD, UNA, DISTRICT UNA, H.P. Vs. SH. PANKAJ KUMAR SHARMA, S/O ONKAR NATH, S/O JAGDISH RAM, R/O VILLAGE OEL, TEHSIL AMB, DISTRICT

JUDGEMENT

(1.) THIS petition has been filed for quashing the Criminal Case No. 186 -I/08/95 -II/II, titled Pankaj Kumar vs. Des Raj pending in the Court of learned Judicial Magistrate Ist Class, Court No. II, Amb arising out of proceedings under Section 138 of the Negotiable Instrument Act, 1881 (for short Act). The brief facts as alleged are that respondent had filed a criminal complaint under Section 138 of the Act against the petitioner. The respondent has alleged that petitioner entered into an agreement with the respondent and his other family members regarding the purchase of their shares of certain land. The respondent further contended in the complaint that at that time the petitioner inspected the spot and also inspected the revenue records and thereafter the petitioner entered into an agreement.

(2.) THE petitioner agreed to purchase land at the rate of Rs. 24,000/ - per kanal. In the presence of witnesses, the petitioner had paid a sum of Rs. 1,00,000/ - to the respondent and also issued one post dated Cheque No. 978251 dated 5.7.2008 of Oriental Bank of Commerce, Una. It has been alleged that remaining price of the land was agreed to be paid by the petitioner to the respondent at the time of execution of the sale deed within a period of three months from 14th June, 2008. The respondent presented the cheque for encashment in the month of July, 2008, however, the same was dishonoured due to the reason payment stopped as per memo dated 18.7.2008.

(3.) IT has been submitted by learned counsel for the petitioner that a fraud has been played by the respondent with the petitioner. The complaint against the petitioner is not maintainable as cheque in question has not been issued by the petitioner for discharging legally enforceable liability. The petitioner had issued the cheque under the impression that the title of the respondent over land in question is free from all encumbrances. The verification report made by the Executive Engineer and perusal of jamabandi make it clear that the title of the respondent over the land in question is not clear as such the respondent has no right to present the cheque in question for encashment in the bank.