IMPORTANT POINT
Dishonour of cheque – Complaint case cannot be quashed on disputed facts.

JUDGMENT

Manoj Bajaj, J.—Applicants have filed this application under Section 482 Code of Criminal Procedure for quashing of Complaint Case No. 3955 of 2015; titled Vinay Kumar Mittal vs. M/s Kutumb Marketing Company and another, filed by complainant-opposite party no. 2, under Section 138 Negotiable Instruments Act, 1881. Briefly, the facts leading to the application are that complainant-Vinay Kumar Mittal brought a complaint under Section 138 Negotiable Instruments Act, 1881 against M/s Kutumb Marketing Company, a Proprietorship Firm represented by applicant no. 2 namely Smt. Meetu wife of Paritosh Srivastava, with the averments that the applicant no. 2 is Proprietor of the applicant no. 1-Firm and is responsible for the conduct of business of the Firm, and the complainant has given a office bearing No. 608 S.L. Tower, Alpha Commercial Belt Greater Noida, District Gautam Budh Nagar, to the accused on rent. The accused never paid the rent in time and for the last two years, there is no rendition of the rent account, and whenever the official of the complainant visits the accused-Firm for demand of rent, he is scolded, and seldom some rent is paid by way of cheques, but the said cheques never cleared on single presentation. On 7th August, 2015, the accused issued a cheque bearing No. 030102 for a sum of Rs. 20,000/-, drawn at Bank of Maharashtra Branch S.L. Tower, Shop No. 3, Alpha-I, Commercial Belt Greater Noida, District Gautam Budh Nagar from account bearing No. 60034507037, in favour of the complainant to clear the debt of rent. The said cheque was presented by the complainant with his bankers, namely, Citizen Cooperative Bank Ltd., affiliated to HDFC Bank for credit in his Saving Account No. 2050, but the same was returned dishonoured through memo dated 13.10.2015. As per the memo of the bank, the cheque was returned with the remarks “Payment Stopped” by the drawer. The complainant issued a statutory notice dated 26.10.2015 through Sri Jabar Singh Advocate by registered A.D. dated 27.10.2015 and demanded the payment of cheque amount within 15 days from the date of the receipt of the notice, but neither any payment was made nor any other information was received from the accused. The complainant filed a complaint against the accused for alleged commission of offence punishable under Section 138 Negotiable Instruments Act, 1881 and also appended the copies of the original cheque dated 7.8.2015, bank return memo, legal notice dated 26.10.2015 and the photo copy of the postal receipt dated 27.10.2015 along with the affidavit.

2. Thereafter, the statement of the complainant was recorded on 29.7.2016 under Section 202 Cr.P.C. by the Judicial Magistrate, Gautam Budh Nagar and after examining the material on record found that prima facie the alleged commission of offence punishable under Section 138 Negotiable Instruments Act, 1881 is made out, and vide order dated 24.1.2017 process against the applicants/accused was issued.

3. Feeling aggrieved against this, the applicants have approached this Court by way of this petition for quashing of the criminal proceedings.

4. Learned counsel for the accused has argued that the complainant has concealed material facts in the impugned complaint (Annexure-2) and did not disclose that before the dishonour of cheque in October, 2015, previously on two occasions the cheque was presented by him on 6.8.2015 and 19.8.2015 and on both occasions it was dishonoured. Learned counsel for the applicants has argued that the cheque is dated 7th August, 2015, but the complainant had presented it before his bankers on 6th August, 2015 and when the bankers of the accused deducted dishonour charges of Rs. 171/-from their account, at that stage, the applicants contacted the complainant and issued another cheque bearing no. 030103 for a sum of Rs. 20,000/-and the said amount was withdrawn by the employee of the complainant, namely, Munna and receipt (Annexure-17) in this regard was also issued.

5. According t