KANTA VERMA Vs. SURINDER GUPTA

JUDGEMENT

(1.) Respondent-Surinder Gupta instituted a complaint u/S. 138 of Negotiable Instruments Act (hereinafter called the Act), before the learned trial Court against M/s. River Ridge Software Pvt. Ltd. and the petitioner herein, a Director of the aforesaid company, on the allegations that accused No. 1-company was indebted and owed Rs. 79,931.50 to the complainant and towards the discharge of his liability issued cheque No. 436833 dated 25-5-2002, for the said amount to be drawn on its banker namely Standard Chartered Grindlays Bank, M-l, South Extension, Part II, New Delhi, to be paid out of its account No. 33679209. The cheque was signed by the petitioner herein being Director of the company. The complainant presented the cheque through its bankers namely Jammu Central Co-operative Bank Ltd. Talab Tiloo Branch Jammu, however it was not honoured by the bankers of the accused and was returned unpaid along with the memo dated 23-11 -2002 with the remarks "payment stopped by the drawer." After receiving the cheque the complainant made a demand through notice within the statutory period and when the accused did not make the payment within 15 days after receipt of the demand notice, he filed the complaint.

(2.) Learned trial Court by its order dated 6-2-2003 issued the process against the accused, after being satisfied that prima facie offence u/S. 138 of the Act stood constituted on the facts alleged and on the basis of the preliminary statement of the complainant.

(3.) The petitioner, a Director of the company, through this petition seeks quashment of the complaint by invoking S. 561-A, Cr. P.C. The case of the petitioner is that on the basis of two agreements dated 1-6-2001 the petitioner and her husband were to purchase all the intellectual property right in software "TikakarRaj Bhasha Anuvadak" alleged to hare been developed by respondent-Surinder Gupta and towards the purchase the petitioner had issued a post-dated cheque dated 25-5-2002 drawn on Standard Chartered Grindlays Bank, Delhi for an amount of Rs. 79,931.50. Under Cl. 18 of the agreement it stood agreed by the parties that in the event of IPR in the said software was claimed by any third party then all the money received by beneficiaries under the said agreement shall make good all the monies paid to them in the liquidation of the pretake over debts and the beneficiaries shall also be responsible for all the claims and damages imposed on the company M/s. River Ridge Software P. Ltd. However on coming to know that neither the respondent was the developer of the software product "Takakar Raj Bhasha Anuvadak" nor he or the accused-company had any right in the said software product, the petitioner and her husband filed a suit for declaration, mandatory injunction, permanent injunction and recovery of the amount with pendente lite interest @ 24% p.a. before Delhi High Court, being Suit No. 126/2002 which is pending disposal and in the said suit respondent No. 1 and the company M/s. River Ridge Software moved an application u/S. 8 of the Arbitration and Conciliation Act read with S. 151, C.P.C. seeking reference of all the disputes between the parties to the arbitrator in view of the arbitration clause existing in the agreement dated 1-6-2001. Delhi High Court accordingly referred the disputes between the parties to the arbitrator Mr. Atul Kayastha and the arbitrator is seized of the matter. It has been submitted by the petitioner that validity of the agreements and the liability of the petitioner for the cheque in question is being considered by the arbitrator, therefore, in the circumstances of the case the complaint deserves to be quashed.