LAKHANI BUILDERS PVT. LTD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of this misc. petition under Sec. 482 Cr.P.C. the accused petitioners have sought prayer for quashing of the entire criminal proceedings pending against them in the court of learned Special Judicial Magistrate (N.I. Act Cases) No.4, Ajmer, Rajasthan bearing CIS No.2469/2021 : Dr. Anoop Sharma vs Lakhani Builders Pvt. Ltd. & Ors.

(2.) It is contended by learned counsel for the petitioners that the petitioner No.1 is a company engaged in construction of residential and commercial establishments and the petitioner nos. 2 and 3 are the Directors of the petitioner No.1. The respondent No.2 booked Flat No.403 in Lakhani's Skyways, Plot No.7, Sector 5 Ulwe, Navi Mumbari and a total payment of Rs.85,00,000.00 has been allegedly made by him. Counsel further contends that the respondent No.2/complainant cancelled the aforesaid booking was cancelled and requested for refund of payment which was accepted by the petitioners and a 'settlement note' was also executed between the parties wherein it was agreed by both the parties that after deducting taxes of Rs.2,40,000.00, an amount of Rs.78,19,367.00 would be the final amount to be paid to the complainant. In lieu of the aforesaid payment, the petitioners issued two cheques of Rs.15,00,000.00 and Rs.63,19,367.00. He contends that a cheque bearing No.000685 dtd. 21/4/2021 drawn on Bank of Baroda, Vashi, Navi Mumbai Branch for a sum of Rs.63,19,367.00 was issued in favour of the complainant. However, on presentation of the cheque, it got dishonoured on account of 'funds insufficient'. Thereafter, the respondent No.2 issued a legal notice to the petitioners. On receipt of such notice, the petitioners gave their reply wherein it was specifically averred that out of two cheques issued to the complainant, one cheque of Rs.15,00,000.00 had already been honoured and as regards the second cheque (No.000685), it was stated in the reply that it was agreed by the respondent No.2/complainant himself that he would not deposit it and would hold it for some time as covid pandemic was prevalent at the relevant point of time. The respondent-complainant was further informed that they have kept ready two cheques of Rs.31,59,683.50 each both drawn on Bank of Baroda, Sector-6, Vashi Branch, Navi Mumbai in full and final payment of the dishonoured cheque. Since, no one came to receive these cheques from the complainant side, the petitioners remitted a sum of Rs.31,59,683.50 each (aggregating to Rs.62,59,367.00) through RTGS on 9/6/2021 and 6/7/2021 respectively and thus, the entire amount has been paid by the petitioners. It is contended by learned counsel for the petitioner that by suppressing the material facts of this case, the complainant-respondent filed a complaint case under Sec. 138 N.I. Act against the petitioners in the court of learned Special Judicial Magistrate (N.I Act Cases), No.4 Ajmer wherein vide order dtd. 5/7/2021, cognizance has been taken by learned trial court. He also contends that apart from filing of the complaint case under Sec. 138 of the N.I. Act, the complainant-respondent has also filed an FIR No. 354/2021 at Police Station Panchsheel for offence under Sec. 420 IPC against the petitioners in which, the police after investigation filed negative final report and when the complainant-respondent filed a protest petition, the learned court below also rejected the protest petition. Learned counsel contends that there is a statutory presumption that the sum drawn in the cheque is a debt or liability that is owed by the drawer of the cheque to the drawee whereas the petitioners have already paid the entire agreed amount via RTGS. He thus, submits that continuation of the criminal proceedings against the petitioners would be nothing but gross misuse of process of law. He thus craves indulgence of this court to quash the entire proceedings arising out of the complaint filed by the complainant-respondent by exercising this Court's inherent powers under Sec. 482 Cr.P.C.

(3.) Per contra, learned counsel appearing for the respondentcomplainant vehemently opposes the submissions made by the petitioners' counsel and submits that the learned Special Judicial Magistrate (N.I Act Cases), No.4 Ajmer has rightly taken cognizance against the petitioners as prima facie offence under Sec. 138 of the N.I. Act is made out. He thus, submits that there is no such material available on record which warrants exercise of this Court's power under Sec. 482 Cr.P.C. I have heard and considered the submissions advanced at bar and have gone through the material available on record. On perusal of the complaint filed under Sec. 138 N.I. Act supported by the affidavit of the complainant before the learned trial court, it is manifest that in para 9 of the complaint, the complainant has admitted receiving payment of Rs.31,59,683.50 through RTGS on 9/6/2021 from accused petitioners. However, in this complaint filed on 28/6/2021, he denied receiving second installment of Rs.31,59,683.50 from accused petitioners. The second payment of Rs.31,59,683.50 via RTGS was made on 6/7/2021 whereas the complaint case under Sec. 138 of the N.I. Act was filed on 28/6/2021. This admission of the complainant-respondent clearly reveals that the dishonoured cheque does not represent the enforceable debt. The complainant has filed the aforesaid complaint case regarding dishonour of cheque in question after having received first installment at his end. Further, the statement of account (Annex.6) filed along with this petition clearly reveals that payment of Rs.31,59,683.50 was made twice in favour of the complainant on 9/6/2021 and 6/7/2021. Apart from that, on the FIR lodged by the complainant, police has filed negative final report and protest petition filed by the complainant has also been rejected.