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DELHI HIGH COURT
M.L. Mehta, J.
Deepak Vig —Petitioner
versus
Avdesh Mittal —Respondent
Crl. M.C. 1136/2011
Decided on 11.1.2012
IMPORTANT POINT
If cheque is not issued for discharge of any debt or other liability section 138 could not be invoked.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 139—Criminal Procedure Code, 1973—Section 482 read with Section 227 of Constitution of India—Dishonour of cheque—Cognizance—If cheque is not issued for discharge of any debt or other liability section 138 could not be invoked—If cheque is issued only as security for performance of certain contract or agreement and not towards discharge of any debt or any other liability, offence under section 138 is not attracted—Section 139 raises presumption that cheque was given for consideration—Payment of security amount of Rs.1.5 crore by petitioner was a fundamental term of lease agreement between parties— Lease-deed entered into between parties constituted a valid contract between them—Interest free security deposit amount of Rs.1.5 crore to be paid by petitioner to respondent constituted his liability as against lessor as it formed a part of consideration of contract for use of property by petitioner as lessee—No illegality in impugned judgment—Petition dismissed. (Paras 7 to 13)
Result: Petition dismissed.
M.L. Mehta, J.—This petition under section 482 Cr. P.C. read with section 227 of the Constitution of India is preferred against the impugned order dated 23.12.2009 of learned Metropolitan Magistrate whereby in a complaint case under section 138 of Negotiable Instrument Act (for short the Act?), filed by the respondent herein, he ordered for issuance of summons to the petitioner.
2. Though the facts of the case are plain and simple, but, there is an interesting legal issue. By virtue of lease agreement dated 14.08.2008 arrived at between the petitioner/lessee and respondent/lessor the property of respondent situated at E-582 Greater Kailash-II, New Delhi was taken by the petitioner for the purpose of running a guest house for a period of five years on an agreed monthly rent of ‘19.00 lakh subject to increase in the rent as per said agreement. The. lease was to came into force from 01.09.2008. The lease stipulated a lockin period of one year before the contract could be terminated. One month’s rent was to be payable in advance by the lessee/petitioner in case of termination of the lease deed. The relevant portions ‘of the lease deed dated 14th August, 2008 read as follows :
i. Clause 4 - “That the lessee shall pay a total sum of ‘1,50,00,000/- (Rupees One Crore Fifty lacs Only) by way of Interest free Security De-posit against the demised premises”
ii. “The amount shall be retained by the lessor as interest free deposit and will be refundable at the time of termination of the said lease against handing. over the vacant possession of the demised premises to the lessor”
iii. Clause v sub clausetb) of clause 4- “The lessor shall refund the security deposit immediately after taking over the possession of the property, in the case of default or delay in refund of the amount an interest of 36 % per annum on the amount will be charged. till the whole of the security deposit is refunded”
iv. Clause 2 sub clause (iv)- “The lessee shall keep the demised premises in a clean and hygienic condition at their own cost. The maintenance contract for all the items provided by the Lessor shall be borne by the Lessee. Full comprehensive annual maintenance contract for general air conditioner will be taken with ETA General by the Lessee”
v. Clause 2 Sub Clause (vii)- “The lessee shall repair ..... “
vi. Clause 2 Sub Clause (ix)- “The Lessee shall keep the interior of the demised premises...damage or breakage caused by the lessee shall be made good by the lessee”
vii. Clause 2 Sub clause (x)- “Maintainence responsibility .... arising from negligence or misuse on the part of the Lessee.
viii. Clause 3 Sub clause (iii)- “That the Lessor provided the electricity con- nection ... ‘If there is a requirementof the extra load to run the business smoothly it will be done at the cost of the lessee.........
3. In pursuance of the said agreement, the petitioner gave five cheques of the amounts of ‘5.00 lakh, ‘57.00 lakh, ‘16.00 lakh, ‘20.00Iakh and ‘52.00 lakh to the respondent. [Out of these five cheques, three cheques of ‘57.00 lakh, ‘16.00 lakh and ‘20.00 lakh were dishonoured on presentation by the bankers of the petitioner with the remarks “insufficient funds”]. Fresh cheques of these amounts were issued by the petitioner. Out of these three fresh cheques, two cheques of ‘16.00 & ‘20.00 lakh respectively dated 04.08.2009 and 11.08.2009 again got dishonoured on account of “payment stopped”. The respondent/complainant issued two separate legal notices to the petitioner in respect of these two dishonoured cheques. These notices were replied by the petitioner on 24.08.2009. Thereafter, the respondent filed the complaint case against the petitioner under section 138 of the Act, the cognizance of which was taken by the MM and the impugned order was passed summoning the petitioner.
4. There does not appear to be any dispute with regard to the facts as briefly noted above. The only contention that was raised by the petitioner in assail
