The court emphasized the requirement of a subsisting liability for criminal liability under Section 138 of the Act and discussed the circumstances under which the inherent powers under Section 482 Cr.P.C., 1973 can be invoked.

JUDGMENT

Sudhir Mittal, J. - It transpires that agreement to sell dated 24.12.2010, was executed between the complainant-respondent and the father-in-law of the petitioner, namely, Balwan Singh Manhas (accused No.2 in the complaint under section 138 of the Negotiable Instruments Act, 1881-hereinafter referred to as 'the Act') in respect of land measuring 04 kanals, 12 marlas situated at village Rurka, Hadbast No.330, Tehsil and District Ludhiana. The sale consideration agreed upon was Rs. 78 lacs and Rs. 10 lacs was determined as the earnest money. The date for execution and registration of sale deed was fixed as 10.01.2011. For payment of earnest money, cheque bearing No.732724 dated 24.12.2010, drawn on Oriental Bank of Commerce, Ludhiana, was issued by the petitioner-accused No.1. The presentation of the said cheque was however, deferred till the second week of January, 2011 by mutual consent. According to the complainant, accused No.2 failed to turn up on 10.01.2011 for execution of the sale deed. Thereafter, the cheque in dispute was presented, but the same was returned vide memo dated 13.01.2011 with the remarks 'payment stopped by drawer'. Thus, a complaint under Section 138 of the Act was filed after service of statutory notice and upon the cause of action having arisen in favour of the complainant.

2. Reply dated 03.02.2011, to the statutory notice issued by the complainant was sent by the accused persons. A copy thereof has been placed on record with the reply filed on behalf of the respondent-complainant. According to the contents thereof, the land in dispute was ancestral property of the complainant-respondent and he was not its exclusive owner. Thus, the accused persons asked the complainant to obtain no objection in writing from the other co-sharers so that physical possession could be taken at the spot. The land was required for the purposes of setting up a factory and immediate possession was essential. The complainant failed to obtain no objection from the other co-sharers and consequently, failed to handover possession as he was not in exclusive possession. The complainant was accordingly apprised of the situation and he agreed to return the cheque of Rs. 10 lacs as the agreement had been frustrated. This information was conveyed prior to the date of execution of the sale deed. Thus, the petitioner-accused No.1 did not have any legal liability to make payment to the complainant. Since, the cheque was presented despite the complainant-respondent having been informed not to present the same, instructions were issued to the bank to stop payment.

3. The accused persons were summoned vide summoning order dated 21.02.2011 passed by the JMIC, Ludhiana. The same was challenged vide CRM-M-12533-2011 and this Court granted stay vide order dated 27.04.2011. This petition was ultimately withdrawn vide order dated 26.08.2014 with liberty to raise all pleas at the time of service of notice of accusation. Consequently, the petitioner and her father-in-law (accused persons) sought discharge vide application dated 26.02.2015, but the same was rejected by the trial Court vide order dated 20.10.2015. Revision petition against the said order was also dismissed vide order dated 06.08.2016 passed by the learned Addl. District and Sessions Judge, Ludhiana. The present petition has consequently been filed under Section 482 Cr.P.C., 1973 for quashing of the complaint as well as orders dated 20.10.2015 and 06.08.2016.

4. At the very outset, learned counsel for the respondent-complainant has challenged the maintainability of the present petition. His contention is that a second revision petition is barred by section 397(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.'). This bar cannot be overcome by filing a petition under Section 482 Cr.P.C., 1973 Reliance has been placed upon a judgment of the Supreme Court in 'Rajathi vs. C. Ganesan, 1999 (3) RCR (Criminal) 581 as well as a number of single Bench