A second complaint under Section 138 of the NI Act does not arise if the cheque was not issued in discharge of debt or liability but on account of a settlement between the parties.

S.K. AWASTHI, J.

1. The applicant has preferred this petition under Section 482 of Cr.P.C. being aggrieved by the order dated 11.8.2016, passed by Additional Chief Judicial Magistrate, Gwalior in Complaint Case No. 830/2016, whereby the application filed by the applicant under Section 245 of Cr.P.C. has been rejected. The brief facts of the case are that a complaint was instituted by the complainant/respondent before the trial Court under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, the 'NI Act') by the respondent against the present petitioner on 18.12.2015. The Judicial Magistrate First Class, Gwalior vide order dated 13.11.2014 passed in Criminal Case No. 1238/2013 sentenced the petitioner for six months imprisonment and fine of Rs. 2,50,000/- was imposed, against which an appeal was preferred, i.e., Criminal Appeal No. 442/2014, which was dismissed vide order dated 17.3.2015 and order of sentence was confirmed. Against the order dated 17.3.2015, a Criminal Revision No. 400/2015 was filed. During pendency of the Criminal Revision No. 400/2015, a settlement took place between the parties and both the parties agreed to withdraw the pending litigations and in terms of the settlement, the respondent/complainant received Rs. 1,40,000/- in cash from the petitioner/accused and for rest amount, i.e., Rs. 1,10,000/-, a cheque of Indian Overseas Bank dated 14.11.2015 was given to the respondent. The present petitioner was signatory to the aforesaid cheque. Later on the cheque was presented for encashment but it was dishonoured and information/memorandum in this regard was sent by the Bank to the respondent on 30.11.2015. As the cheque was dishonoured, second complaint was filed and a case was registered as Criminal Case No. 830/2016 for the offence punishable under Section 138 of the NI Act. In this criminal case, the petitioner filed an application under Section 245 of Cr.P.C. submitting that the cheque was not given under any liability but it was given during the course of compromise, therefore, the trial court has erred in taking cognizance against the petitioner. The trial Court dismissed the application, which is the subject matter of challenge in the present petition filed under Section 482 of Cr.P.C.

2. Learned counsel for the petitioner by placing reliance upon the judgment of Hon'ble Apex Court in the case of Lalit Kumar Sharma and another vs. State of Uttar Pradesh and another, reported in (2008) 5 SCC 638, submitted that as the second cheque was given in lieu of the compromise and as the petitioner was already punished in the earlier case, the question of taking cognizance on second complaint does not arise.

3. On the other hand, learned counsel for the respondent has made an attempt to distinguish the judgment delivered by the Hon'ble Apex Court in Lalit Kumar Sharma (supra). His contention is that the respondent has not received the amount and as per settlement, a cheque was given and the same was dishonoured, therefore, as there was liability which is a legally enforceable debt, the second complaint is maintainable and the trial Court has rightly dismissed the application filed by the petitioner.

4. Heard learned counsel for the parties at length and perused the record.

5. In the present case, it is an undisputed fact that in respect of earlier cheque issued by the present petitioner a criminal case was preferred under Section 138 of the NI Act and an order of conviction was passed by the JMFC, Gwalior. Fine was also imposed. An appeal was preferred against the order of conviction, bearing Criminal Appeal No. 442/2014, which was dismissed. Being aggrieved by the order of conviction Criminal Revision No. 400/2015 was filed before this Court. During the course of hearing of revision, both the parties agreed to withdraw pending litigation by filing compromise petition. A cheque of Rs. 1,10,000/- was also given in the light of the settlement between the parties and the same has been dishonoured. There