The court affirmed that complaints under Section 138 of the NI Act were filed within the limitation period, allowing for a second legal notice to rectify technical defects without prejudice to the accused.

JUDGMENT

Deepak Gupta, J.

This order shall dispose of two petitions titled above, as both of them have arisen out of the same transaction, in which petitioners of the two cases, who are the family members, allegedly issued cheques in favour of the same respondent-complainant, which were later on dishonored. Petitioners have sought quashing of the complaints as well as the summoning order.

2.1 Perusal of the paper book reveals that complaint No.COMA/7777 of 2019, titled M/s Classic Finserve Pvt. Ltd. v. Daljeet Singh; and complaint No.COMA/7773/2019 titled M/s Classic Finserve Pvt. Ltd. v. Kamaljit Kaur, (Annexure P.2 in both the petitions), were filed by the respondent seeking prosecution of the petitioners under Section 138 of the Negotiable Instruments Act.

2.2 It was alleged that the two petitioners Daljeet Singh and Kamaljit Kaur along with other family members were running the firms titled M/s Kamal Food Products and Amrit Foods Products, which were having professional relations with the complainant- Company. Two of the family members, namely, Hardeep Singh and Smt. Satvir Kaur agreed to sell two of their family properties in favour of the complainant. When the documents were handed over to the complainant, it was found that the properties were under mortgage. The petitioners and other family members assured to clear the loan. Consequent thereto, an agreement dated 03.04.2017 was executed in respect of one of the properties, of which petitioner - Kamaljit Kaur was the owner and an amount of Rs. 60 lacs was paid to her as earnest money. By way of another agreement dated 03.04.2017, second property was agreed to be sold by petitioner - Daljeet Singh and his wife and an amount of Rs. 25 lacs was paid. With the help of those amounts, accused cleared the loans. However, they failed to execute the sale deeds pursuant to the agreements to sell. Later on, the accused-petitioners told the complainant that they will compensate it for the loss occurred. Their request was accepted by the complainant. Complainant submitted that as per the terms of agreement, it was entitled to double the amount of the earnest money. In January, 2018, accused paid an amount of Rs. 60 lakhs from the account of Kamaljit Kaur and assured to pay the remaining amount of compensation @ 12.6% per annum. Later on, accused agreed to sell another property but failed to get the sale deed executed.

2.3 Ultimately, the two petitioners, i.e. Daljeet Singh and Kamaljit Kaur, in order to clear the balance outstanding amount along with compensation, paid the following two cheques to the complainant:

(i) Cheque No.097054 dated 31.01.2019 for an amount of Rs. 28,83,765/- issued by petitioner - Daljeet Singh; and

(ii) Cheque No.739020 for an amount of Rs. 3,56,012/- issued by petitioner - Kamaljit Kaur.

On presentation, both the cheques were returned unpaid by the banker of the petitioners vide return memos dated 30.04.2019 with remarks "Stop Payment".

2.4 With regard to cheque issued by Daljeet Singh, complaint No.COMA-7777 of 2019 was filed against Daljeet Singh (petitioner in CRM-M-10240 of 2020), submitting that legal notice dated 29.05.2019 was served upon the accused-petitioner to pay the cheque amount of Rs. 28,83,765/- within 15 days of the receipt of the notice, but accused-petitioner failed to respond to the notice. It is also mentioned that earlier, complainant had served a legal notice dated 22.05.2019 not only to the accused-petitioner Daljeet Singh & Kamaljeet Kaur but also to other family members in respect of both the cheques. However, in order to avoid any technical legal issues, complainant served the accused with fresh legal notice dated 29.05.2019.

2.5 As accused-petitioner failed to make the payment despite notice, so the complaint was filed to prosecute the accused under Section 138 of the NI Act.

2.6 With the similar allegations, complaint No.COMA-7773/2019 was filed against accused Kamaljit Kaur (petitioner in CRM-M-10096 of 2020) in respect of dishon