The determination of whether a cheque was issued for discharge of a legal liability or as security should be ascertained upon leading evidence during trial and not at the preliminary stage.

JITENDRA CHAUHAN, J (Oral)

1. The present petition under Section 482 of the Code of Criminal Procedure (for short the Code) is for quashing of the complaint dated 22.08.2009 (Annexure-P/5), and all subsequent proceedings arising therefrom including the summoning order dated 22.08.2009 (Annexure P/6) passed by the Judicial Magistrate, Ist Class, Gurgaon whereby the petitioners have been summoned to face trial under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act).

2. Facts in brief, as mentioned in the petition, are that petitioner No.1 M/s Aura Institutions Pvt. Ltd. is authorized representative of Anna University, Coimbatore for selection of parties for setting up of campus education centres all over India under the Public-Private-Partnership (PPP) model. The respondent represented itself to be an educational society for considerable repute having infrastructure for setting up Engineering and MBA colleges. Petitioner No.1 agreed to get affiliation to the respondent on the aforesaid representation. A memorandum of understanding (MoU) dated 10.03.2009 (Annexure P/1) was entered between the petitioner-company and the respondent in Delhi for getting the respondent affiliated to Anna University, Coimbatore for Engineering and MBA programme. The MoU stipulated payment of Rs.15,00,000/-towards the affiliation fee to the Anna University, Coimbatore which was paid by the respondent to the petitioner-company. It was also stated that the petitioner company has made payment of Rs.15,00,000/-to the Anna University, Coimbatore, as duly acknowledged by the University vide its letter dated 24.04.2009 (Annexure P/2). (However, the respondent has claimed the letter Annexure-P/2 to be a forged document, and has annexed a true copy of the letter Annexure-P/2 as Annexure-R/1 wherein there is no reference of receipt of Rs.15,00,000/-by the Anna University, Coimbtore. This fact remains unchallenged). As the respondent wanted some surety, petitioner No.2-Chairman of the petitioner No.1-company, gave surety cheque No.559866 dated 30.06.2009 drawn on City Bank Delhi for the amount of Rs.15,00,000/-. As per the MoU in case the respondent’s application for affiliation got rejected in spite of complying with all requirements, the cheque was to be got encashed. The respondent vide its letter dated 27.06.2009 ( Annexure P/3) informed petitioner No.2, Chairman of the petitioner company that there had been inordinate delay in inspection of their campus by the Inspection Committee of Anna University and that it was very late for starting the courses. It had been mutually agreed to terminate the MoU. Hence, the cheque dated 30.06.2009 drawn on City Bank New Delhi for Rs.15,00,000/-was going to be deposited in the respondent’s account. Petitioner No.1 Company vide its letter dated 01.07.2009 (Annexure P/4) informed the respondent that instructions for stop payment of the cheque dated 30.06.2009 had been issued to the bank, as the expenses that had been incurred by the petitioner-company were yet to be settled. Accordingly, the cheque dated 30.06.2009, which was deposited by the respondent with its banker namely Syndicate Bank, Manesar Branch, Gurgaon was dishonoured and returned unpaid with the remarks ‘payment stopped by drawer’ vide memo dated 02.07.2009. The respondent issued demand notice on 10.07.2009 to the petitioners calling upon them to pay the amount of Rs.15,00,000/-within fifteen days of the receipt of said notice. Despite receipt of the notice, the petitioners did not pay any amount to the respondent. Thereafter, the respondent filed complaint dated 22.08.2009 (Anneuxre P/5) under Sections 138/141/142 of the Act, before the Judicial Magistrate, Ist Class, Gurgaon. To substantiate the facts stated in the complaint, the complainant (CW1) appeared as a witness, and further placed on record, the cheque, memo, legal notice and postal receipts. On perusal of the documents placed on the record and in the light of the oral e