A cheque issued for repayment of money, even if initially related to an employment agreement, can constitute a legally enforceable liability under Section 138 of the Negotiable Instruments Act.

Judgment

Mr. Sanjiv Berry, J.

The instant petition has been preferred by the petitioner under Section 482 of the Code of Criminal Procedure for seeking quashing of complaint No.199 of 2018, dated 17.09.2018, titled as “Sonu Kadyan Vs. Rajiv Kumar Gupta” (Annexure P-1) whereby petitioner has been summoned for commission of offence punishable under Section 138 of the Negotiable Instruments Act, vide order dated 05.12.2018 (Annexure P-2), passed by learned Additional Civil Judge (Sr. Division)-cum-Sub Divisional Magistrate, Samalkha, and all subsequent proceedings arising therefrom.

2. In nutshell, the brief facts of the case are that a complaint under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the ‘N.I. Act’ in short) has been filed before learned Additional Civil Judge (Sr. Division)-cum-Sub Divisional Magistrate, Samalkha, stating that petitioner and the complainant were known to each other. Petitioner was working as Asst. Engineer, (Broadcasting) at New Broad casting House, Parliament Street, New Delhi. Petitioner had disclosed that he had good relations with higher officers in Radio Station and permanent posts of clerks are lying vacant there, if the complainant is willing to get permanent employment as clerk he will have to pay Rs. 10,00,000/- to the petitioner and the complainant consented to the same. Complainant arranged Rs. 7,20,000/- and paid to the petitioner and assured to pay rest of amount of Rs. 2,80,000/- after issuance of appointment letter. When the petitioner was unable to provide the appointment letter for the post of clerk, complainant visited the office of the petitioner and asked him to handover the appointment letter or to return amount of Rs. 7,20,000/- upon which the petitioner issued a post dated cheque bearing No. 749171 dated 12.07.2018 amounting to Rs. 7,20,000/- drawn in favour of Punjab National Bank. Complainant presented the said cheque before the Bank and the same was returned with the remarks “ACCOUNT FREEZE”. Complainant contacted the petitioner and informed him about dishonour of the cheque and requested him to refund his money but the petitioner did not pay any heed. Hence the complainant filed complaint No.199 of 2018, dated 17.09.2018, titled as “Sonu Kadyan Vs. Rajiv Kumar Gupta” (Annexure P-1) and vide order dated 05.12.2018, (Annexure P-2) learned Court of Additional Civil Judge (Sr. Division), cum-Sub Divisional Magistrate Samalakha, summoned the accused/petitioner. Aggrieved by the same, petitioner, filed the present quashing petition.

3. It is contended by learned counsel for the petitioner that the case of the complainant himself is that he had given an amount of Rs. 7,20,000/- to the petitioner, as the petitioner had promised to get the complainant appointed permanently as Clerk in the Radio Station. Since the complainant did not get employment, he requested the petitioner either to get him an appointment letter or to refund the amount. The petitioner had issued a post dated cheque, which upon its presentation was dishonored.

4. Learned counsel for the petitioner further submits that it is only on account of a legal enforceable liability that provisions of Section 138 of the Negotiable Instrument Act would come into play and that since the amount in the instant case had been given for the purpose of securing employment, the repayment of the said amount would not attract any criminal liability. Learned counsel in order to put forth his aforesaid submissions placed reliance on the law settled in Virender Singh Vs. Laxmi Narain, 2007 (3) RCR (Criminal) 157 wherein, it was held that complainant paying ¹ 80,000/- to the accused for securing government job; accused failed to arrange job and paid back the money by way of cheque; cheque dishonoured; accused not liable under Section 138 of the N.I. Act as the agreement was unlawful. He has further referred to Sita Ram v. Radha Bai, 1968 AIR (SC) 534; Mohd. Salimuddin v. Misri Lal, 1986 AIR (SC) 1019; and J. Daniel