Mool Chand Garg, J.

1. This petition has been filed by the petitioner aggrieved from the summoning order and the complaint filed by the respondents against them on account of dishonor of a cheque dated 07.10.2003 for a sum of Rs. 24,30,350/- which was given by the petitioners to M/s KMF Builders and Developers Limited (hereinafter referred to as KMF) on account of having entered into an agreement for the purchase of certain shares in property comprising in the Old Survey No. 105/1(part), New Survey No. 34(1) situated at village Gauipada, Taluk Kalyan, Distt. Thane. The said cheque was presented for payment by the respondent to their bankers in July, 2004 and the same was returned back with the remarks that the instructions have been given to the bankers by the petitioners to "stop the payment".

2. It is a matter of record that no reply was filed by the petitioners to the notice issued on behalf of the complainant about the dishonor of the cheque within the stipulated time. Accordingly, the respondent/ complainant filed the present complaint in which the petitioners have been summoned by the learned Magistrate on the basis of an affidavit filed by the complainant as evidence.

3. The summoning order reads as under:

KMF Builders v. Om Prakash Tiwari Fresh complaint received on assignment. It be checked and registered.

Present: Complainant/AR with counsel Affidavit filed by way of evidence C.E. closed. Arguments on summoning of accused heard. Record perused. The cheque, notice and complaint are within limitation. I am satisfied that there are sufficient grounds to summon the arrayed accused U/S 138 NI Act. Therefore, accused be summoned PF & RC with copy of complaint be filed within one week from today for 06.01.2005. Dasti.

MM New Delhi.

18.09.2004

4. According to the petitioners the filing of the complaint on behalf the respondent is a misuse of process of Court. It is submitted by them that on 12.07.2004 itself a collobaration agreement was entered into between the respondent No.2 and M/s Advik Finance & Properties (P) Ltd. which was a development agreement and one of the conditions of the said agreement was that:

4. (a) the share of the First Party in Commercial (Lotus) is 693 sq. ft. (35% of total saleable area of 1980 sq. ft. in shops), the cost of which has been agreed at Rs. 1,100/- per wq. Ft., which comes to Rs. 7,62,300/-. The Second Party has paid a sum of Rs. 6,20,750/- earlier as per agreement dated 10th February, 2003 and is now paying the balance amount of Rs. 1,41,550/-to the Second vide cheque No. 754652 dated 30.09.2003 drawn on Bank of Baroda, Banglore and as such the first Party has now left no right in respect of its share of 693 sq. ft. in the shops being constructed by the Second Party subject to clause 4(c) herein.

(b) The Second Party also, with a view to discharge its liability towards First Party in respect of its share of 3739 sq. ft. (35% of total saleable area of 41891 sq. ft. in Merrigold), which would be available to the First Party on development of Plot No.9 (Merrigold), has given a cheque No. 754653 dated 12.07.2004 for Rs. 24,30,350/- drawn on Bank of Baroda, Bangalore to the First Party, the cost of which has been agreed at Rs.

650/- per sq. ft.

(c) It is agreed by and between the parties hereto that if the Second Party exercise its right to sell the area of the plot No.9 (Merrigold), the amount payable by the Second Party to the First Party as per Clause 4(b) above will become payable forthwith and the Second Party will be entitled to the discount at the rate of 15% per annum for the pre-poned period. In such case Second Party make the payment to the First Party by way of Bank Draft payable at New Delhi in favour of the First Party by way of Bank Draft payable at New Delhi in favour of First party by way of Bank Draft payable at New Delhi in favour of First Party and shall inform the First Party immediately once any such deal is finalized and signed by the Second Party. This condition applies only for 4

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