Decided on February 23,2007

D.S.NANDA Appellant


A.K.SIKRI, J. - (1.) The respondent herein had filed a complaint under Section 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code against M/s. Creative Handicrafts (Electronic Division), Mr.D.S. Nanda, Mr.T.S. Bhatia and Mr. Subroto Roy. The complaint was, obviously, on the basis of a dishonoured cheque and was filed on 10.8.1990. Cheque in question was for a sum of Rs.7 lacs, which was dishonoured on 10.4.1990. Accused persons were summoned in this complaint. Thereafter, they approached the respondent (hereinafter called the 'Complainant') and wanted him to withdraw the said complaint. In this behalf, ultimately agreement dated 14.5.1991 was executed between the complainant and accused No. I/petitioner herein, pursuant whereto the complainant withdrew the complaint. In this agreement, it was agreed that a sum of Rs.3,19,620/- in all shall be paid to the 'complainant. There were certain other terms and conditions. After the withdrawal of the complaint under Section 138 of the NI Act the complainant approached the accused persons and requested them to honour the said agreement. However, despite repeated reminders and requests, they failed to do the needful. The complainant, in these circumstances, was compelled to file another complaint under Section 420/34 and 120-B IPC, in which it is alleged that he was induced by the accused persons to enter into the said agreement giving false assurance so that the complaint in question filed by him is withdrawn and, therefore, the accused persons conspired between themselves and cheated him. The Magistrate took cognizance of the complaint after recording pre-summoning evidence and summoned Sh. D.S. Nanda alone arid refused to summon the other accused persons.
(2.) Sh.Nanda, the petitioner herein, has filed this petition challenging the summoning orders. The submission is simple, namely, after the said agreement was arrived at between the parties pursuant to which the complainant had withdrawn the earlier complaint, entire payment of Rs.3,19,620/-, as agreed between the parties, was made by the petitioner to the complainant and, therefore, terms of the agreement stood satisfied. However, in the said agreement the petitioner had also to fulfill certain other conditions regarding advance licence fee and duty drawback etc. and some disputes arose on that account because of which the complainant filed the complaint. The submission of the petitioner, therefore, is that in any case admittedly there was a part compliance of the agreement in question and, therefore, it could not be said that there was any case of cheating. Learned counsel for the petitioner further pointed out that in respect of other obligations there was a dispute between the parties and suit was also filed being Suit No. 1090/1994. He also pointed out that after the filing of the complaint on 8.1.1993 the respondent had served legal notice dated 5.7.1993 alleging non-compliance of the agreement on the basis of which he demanded payment of Rs.23,62,013/- and ultimately filed the suit for recovery thereafter. Therefore, he submitted that attributing non-compliance of the part of the agreement, the complainant was only demanding money and, therefore, had no right to maintain the criminal complaint. He submitted that in such circumstances, it could not be treated that it is a case of cheating and in support following judgments were cited:- 13. Ajay Kumar & Ors., 131 (2006) DLT 130. 14. Rajendra Narayan Vajpeyi Vs. State & Ors., 1996 V AD (DELHI) 96 = 64(1996) DLT 99 15. Nageshwar Prasad Singh @ Sinha, 1998 (5) SCC 694. 16. S. Surbir Singh Vs. Mahender Kumar Rajput & Ors., 81 (1999) DLT 191
(3.) Learned counsel for the respondent, on the other hand, submitted that in the summoning order the learned trial court had specifically mentioned that there was sufficient ground to proceed against the petitioner herein under Section 420 IPC and, therefore, this Court should not interfere at this stage. The petitioner should prove his defence at the stage of trial. He further submitted that first complaint under Section 138 was filed on the basis of dishonouor of cheque of Rs.7 lacs. However, the complainant agreed to withdraw the same after the agreement in question was arrived at as per which, it was agreed that not only the complainant would be paid a sum of Rs.3,19,620/- but in para 2 of the agreement it was also agreed that M/s. Creation Handicrafts (accused No.1 in the earlier complaint) had applied to the Government for claiming CCS @ 10% on FOB Value amounting to Rs.1,81,500/-, which amount the petitioner agreed to pay to the complainant within one week from the date of receipt of the said amount from the Government. Paras 8 and 9 of the agreement further provided as under:- "8. Thus the disputes shall stand settled and DCD shall withdraw or get dismissed the complaint filed agianst CH etc. and pending in the court of Sh. A.S. Yadav, MM, New Delhi. 9. The parties shall have no claim against the other regrading this export transaction subject to the fulfilment of the clauses 1 to 7 by CH.";

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