ORDER :

Petitioners are aggrieved by the summons issued to them by the XII Additional Chief Metropolitan Magistrate in C.C. No.20117/2016 (P.C.R. No.8191/2016).

2. Heard learned counsel for the petitioners and learned counsel for the respondent. Perused the records.

3. The respondent (hereinafter referred to as “complainant”) filed a complaint under Section 138 of Negotiable Instruments Act against the petitioners and accused No.1 alleging that the cheque for Rs.1,10,00,000/- (Rupees One Crore Ten Lakh only) issued by accused No.1 was dishonored for “account closed”. In the complaint it was alleged that the said cheque was issued by accused No.1 for and on behalf of the petitioners namely accused Nos.2 to 6. Necessary averments in this regard find a place in para 4 of the complaint which reads as under:

“The Complainant submits that the Accused No.1 had prepared a draft agreement of sale and it was between the Complainant and the Accused No.1 only. But, on the day of Registration of the Agreement of sale at the office of the Sub-Registrar, Vijayanagara, Bengaluru 560040, he brought in Five other names deleting his name stating that they are assignees and they have financial transactions with him at M/s. Pluto Craft Financial Solutions and therefore for adjustment of their financial transactions, the Accused No.1 getting the agreement of sale in their names and the Sale deed will be between the Complainant and the Accused No.1. However, the advance amount of Rupees One Crore Ten Lakhs is being paid immediately after registration of Agreement of sale is over. Immediately after registration is over there was some confusion between the Accused No.1 and the persons entered into agreement of sale. When the Complainant demanded the advance amount of Rupees One Crore Ten lakhs the Accused No.1 started telling that there is some confusion between them about who has to pay and how much has to pay etc. And to set right their confusion a agreement of sale requires a Rectification deed and therefore, let us have Rectification Deed at the earliest and the advance amount will be paid on the day of Rectification deed without fail. Since the Agreement of Sale was registered it was inevitable for the complainant to agree for Rectification Deed thinking, whether Accused No.1 gives the money or his assignees whose names appeared in the agreement of sale makes no difference. The Accused No.1 assured and promised to give Demand Draft/Bankers Cheque on the day of Rectification Deed.”

4. Learned counsel for the petitioners submits that the cheque in question was issued by accused No.1. Accused No.1 was not a party either to the original agreement of sale dated 19.08.2015 or the subsequent rectification deed dated 01.10.2015. Accused No.1 has nothing to do with the aforesaid agreement of sale. In view of the breach committed by the respondent, petitioners have already instituted a suit for specific enforcement of the said agreement and the said suit in O.S. No.7297/2016 is pending before the Civil Court. After filing the said suit respondent/complainant has filed the above complaint solely with the intent to extract money from the petitioners. The complaint does not contain any averments making out the offence by the petitioners under Section 138 of the Negotiable Instruments Act. Hence the prosecution of the petitioner is illegal and an abuse of the process of Court and therefore is liable to be quashed in exercise of the powers under Section 482 of the Cr.P.C.

5. Refuting the submission, learned counsel for respondent/complainant submits that the complaint was filed before the presentation of the suit. However, he admits that the complaint was filed after receipt of the notice issued by the petitioners. Further he submits that clear averments are made in the complaint to the effect that the cheque in question was issued by accused No.1 for and on behalf of the petitioners in respect of the agreement of sale entered into by the petitioners and hence the p