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DELHI HIGH COURT
M.L. Mehta, J.
Deepshika Kumari —Petitioner
versus
Leela Infrastructure and Mining
Pvt. Ltd. —Respondent
Crl. M.C. No. 2348/2011
Decided on 12.9.2012
Counsel for the Parties:
For the Petitioner: Mr. Prashant Bhushan,
Advocate.
For the Respondent:Mr. Mohit Mathur, Advocate.
IMPORTANT POINT
Complaint can be quashed where allegations made in complaint, even if they are taken at their face value and accepted in entirely, do not constitute any offence or make out a case alleged against accused.
Headnote:(A) Negotiable Instruments Act, 1881—Sections 138 and 139—Criminal Procedure Code, 1973—Sections 177, 178 and 482—Dishonour of cheque—Complaint—Cheque given by petitioner was to be presented by respondent not only on contingency of sale of share of persons of First Part, but after receipt of sale proceeds in their account—Sale of their share was also subject to other shareholder agreeing to sell his share in property in the manner as stipulated in agreement—Cheque was not given in discharge of any debt or liability but as a financial arrangement and was contingent upon happening of all that was stipulated in MOU—Dishonour of this kind of cheque could not draw any adverse presumption against drawer under Section 139—Complaint can be quashed where allegations made in complaint, even if they are taken at their face value and accepted in entirely, do not constitute any offence or make out a case alleged against accused——Complain and impugned order quashed. (Paras 5, 8, 14 and 15)
(B) Negotiable Instruments Act, 1881—Sections 138 and 139—Dishonour of cheque—Adverse presumption—Presumption under Section 139 can be drawn only in cases where factual basis for drawing presumption exists and that complainant, who seeks to draw such presumption is bound to establish the basis for drawing presumption—All categories of cheques may not fall within rigour of Section—It will all depend upon facts and circumstances, under which cheque is given—Test would be as to whether cheque strictly falls within provisions of Section 138 or not. (Paras 10 and 13)
Key Points:- The cheque in question was tied to contingencies and a financial arrangement under a Memorandum of Understanding, not to discharge an existing debt or liability.This supports quashing of the complaint and related order. (!) (!) - The presumption under Section 139 is applicable only when a factual basis exists for drawing the presumption; not all cheques fall under Section 138, depending on the facts and circumstances.[6000060290009][6000060290012]- The petition was allowed to quash the complaint and the impugned order under Section 482 Cr.P.C.based on the nature of the cheque and its contingencies.[6000060290007][6000060290014]- A post-dated or contingent cheque issued to secure future liability may not attract Section 138; only discharge of existing debt or liability at the time of issue does. (!) [6000060290011]- The court emphasized that a complaint can be quashed where the allegations do not constitute an offence, even if accepted at face value.[6000060290013]
What is the scope of presumption under Section 139 NI Act when the cheque is part of a contingent or future liability?What are the circumstances under which a complaint under Section 138 NI Act can be quashed for failure to show an offence?What determines whether a cheque was issued for discharge of existing debt/liability versus as security or contingency, and how does that affect applicability of Section 138?
M.L. Mehta, J.—This petition under Section 482 Cr. P.C. assails order dated 26.06.2010 and also seeks quashing of criminal complaint No. 463/2011 titled as “Leela Infrastructure & Mining Pvt. Ltd. Vs. Ms. Deepshikha Kumari”, pending in the Court of Metropolitan Magistrate-03, South-West.
2. The petitioner is facing prosecution in the afore-said criminal complaint filed against her by the respondent under Section 138 of Negotiable Instruments Act (for short, “the Act”), on the allegations that a cheque of Rs.2.5 crore, given by her towards discharge of her liabilities of self, and also as guarantor of her brother Shri Sangram Vijay Singh and sister Smt. Deepanjali Singh, was dishonoured on account of “insufficient funds” and, that she has not paid the cheque amount despite legal notice dated 06.05.2010. The petition is filed for quashing of the aforesaid criminal complaint, as also the impugned order dated 26.06.2010 of the learned MM, whereby she has been ordered to be summoned. The grounds on which the quashing of the complaint and also the impugned order are sought are that the cheque in question was issued not towards discharge of any legally recoverable debt or liability for herself or as a guarantor, as alleged, for her brother and sister, but it was issued as a financial arrangement, that was arrived at between the parties by a Memorandum of Understanding (MOU) dated 05.10.2009. It was submitted that the presentation of the cheque in question was subject to contingency of encashment of cheque of Rs.75.00 lakh given by the respondent in the name of Smt. Madhuri Singh and, further the receipt of sale proceeds of the property bearing No. 54, Friends’ Colony (East), New Delhi, in the account of the party of the First Part of the MOU. It was also submitted that the cheque in question was dated 05.10.2009, which was tampered with as dated 15.10.2009.
3. On the other hand, the submission of learned counsel for the respondent was that the cheque was given by the petitioner towards discharge of her liability and, that of other persons named in the MOU. It was submitted that as per Section 138 read with Section 139 of the Act, there was a presumption of the cheque having issued by the petitioner towards discharge of her legally recoverable debt or liability and thus, the onus to rebut the presumption was on the petitioner. It was also submitted that the defence which was sought to be taken by the petitioner could not be gone into at this stage and, could only be proved by trial.
4. For better understanding the controversy, it may be briefly noted that undisputedly MOU dated 05.10.2009 was arrived at between the petitioner and her other family members (as party of the First Part), and the respondent through its Chairman (as party of the Second Part) and Smt. Madhuri Singh (as party of the Third Part i.e. the Confirming Party). There was some dispute between the parties of the First Part and the Third Part i.e. the Confirming Party with regard to property bearing No. 54, Friends’ Colony (East), New Delhi. The parties of the First Part and the Third Part were having several litigations with regard to this property. Ultimately, a settlement was sought to be arrived at between the parties for the sale of this property to the party of the Second Part i.e. the respondent and, that is how this MOU came to be executed between the three parties. Since this MOU is not in dispute and is the genesis of the cheque in question, it would be instructive to extract the relevant parts of the said MOU as under:
“And whereas the Parties of the First Part and the Confirming Party have arrived at an amicable settlement whereby the said Confirming Party has agreed to withdraw her application, accept and confirm the relinquishment deed dated 28th November, 1988 and treat the Memorandum of Family Settlement as satisfied and implemented on payment of a sum of Rs. 75,00,000/- (Fupees Seventy Five Lacs only) which amount the Parties of the Fi
