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2019 Supreme(P&H) 2934
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Surinder Gupta, J.
Veena Sharma - Appellant
Versus
State Of Punjab & Anr. - Respondents
Crl. Misc. No. M-36615 of 2018 (O&M)
Decided On : 06-11-2019
Mr. H.S. Saggu, Advocate, for the Appellant; Mr. Amitoj Singh Dhaliwal, DAG, Punjab. And Mr. Sanjeev Goyal, Advocate, for the Respondent
Misuse of court process under Section 138 of Negotiable Instruments Act when payments exceed the cheque amount.
Headnote:
Section 138 of Negotiable Instruments Act - Quashing of Complaint
Fact of the Case:
The petitioner filed a petition seeking the quashing of a complaint under Section 138 of Negotiable Instruments Act for dishonour of a cheque. The petitioner had made payments in the account of the complainant, which exceeded the cheque amount, and argued that the complaint was a misuse of the court process.
Finding of the Court:
The court found that the complainant's filing of the complaint despite the petitioner's payments in the account was a misuse of the court process. The court allowed the petition and quashed the complaint and all subsequent proceedings.
Issues: The main issue was whether the complainant could file the complaint despite the petitioner's payments exceeding the cheque amount.
Ratio Decidendi: The court held that the filing of the complaint was a misuse of the court process as the petitioner had made payments exceeding the cheque amount, and the complaint did not specify that the cheque was issued towards part payment of the due amount.
Final Decision: The court allowed the petition and quashed the complaint and all subsequent proceedings.
JUDGMENT
Surinder Gupta, J. (Oral) - Petitioner has filed this petition under Section 482 Code of Criminal Procedure seeking quashing of Complaint No.NACT/559 of 2018 dated 23.02.2018 (Annexure P/1) titled as Gupta Smelters Private Limited Vs. Veena Sharma and Anr, pending before Judicial Magistrate 1st Class, Sangrur, summoning order dated 23.02.2018(Annexure P-2) and all subsequent proceedings arising there from.
2. Complainant-respondent No.2 filed a complaint under Section 138 of Negotiable Instruments Act for dishonour of cheque dated 27.09.2017 presented in bank for payment on 26.12.2017. The cheque was allegedly issued for payment of Rs. 27,58,458/-. As per the legal notice issued before filing of the complaint, petitioner had issued this cheque towards his liability for the amount mentioned in the cheque. This fact is not disputed that after the issuance of cheque and notice, following payments were made in the account of respondent No.2-complainant by the petitioner:-
Sr. No. | Date | Payment |
(i) | 16.11.2017 | Rs. 15,00,000/- |
(ii) | 19.12.2017 | Rs. 5,00,000/- |
(iii) | 20.12.2017 | Rs. 10,00,000/- |
(iv) | 20.12.2017 | Rs. 5,00,000/- |
(v) | 21.12.2017 | Rs. 10,00,000/- |
(vi) | 08.01.2018 | Rs. 5,00,000/- |
(vii) | 23.01.2018 | Rs. 2,00,000/- |
(viii) | 02.02.2018 | Rs. 2,73,778/- |
3. Statement of account, copy of which has been placed on file as Annexure P-6 shows that between 13.06.2017 and 02.02.2018, a sum of Rs. 54,73,778/- was deposited in the account of respondent No.2-complainant.
4. Learned counsel for respondent No.2 has not disputed the deposit of aforesaid amounts on the dates as mentioned in the statement of account and has argued that even after adjusting this amount, a sum of Rs. 27,61,658/- is due to the petitioner towards the price difference and interest over the overdue payment.
5. The question, which arises for consideration in this petition is as to whether the complainant could file the complaint despite the fact that after the issuance of alleged cheque on 27.09.2017, the petitioner had made payment in the account of complainant, which is more than the cheque amount. From the date of alleged issuance of cheque and till date of its presentation, Rs. 45,00,000/- had been paid in the account of respondent No.2-complainant, as such, this plea in the complaint that the petitioner was asked to make the payment of the cheque but he failed, on the face of it is not credible. Even after the date of presentation of cheque, deposits were made in the account of respondent No.2.
6. From the submission of learned counsel for respondent No.2-complainant, it appears that there is some dispute about amount due towards price difference of goods supplied and due interest amount towards petitioner for which the respondent No.2-complainant has a separate remedy to avail. The payments made by the petitioner after the alleged date of issuance of cheque till the filing of the complaint, are to be firstly adjusted towards the payment of cheque amount. In the notice sent by the complainant, there is no averment that cheque had been issued towards the part payment of the due amount.
7. Keeping in view the above facts, I am of the considered opinion that filing of complaint under Section 138 of Negotiable Instruments Act by complainant-respondent No.2 is sheer misuse of the process of Court. This petition has merits and the same is allowed. Complaint No.NACT/559 of 2018 dated 23.02.2018 (Annexure P/1) titled as Gupta Smelters Private Limited Vs. Veena Sharma and Anr, pending before Judicial Magistrate 1st Class, Sangrur, summoning order dated 23.02.2018 (Annexure P-2) and all subsequent proceedings arising there from are quashed qua the petitioner.
