- (1.) This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing of complaint No.79/2 dated 5.3.2007 (Annexure P-1) titled as M/s Singla Trading Company vs. M/s Commander Poultries and others under Section 138 of the Negotiable Instruments Act, 1881 (for short- " the Act"); summoning order dated 9.3.2007 (Annexure P-2); notice of accusation dated 23.4.2008 (Annexure P-3) and all the subsequent proceedings arising therefrom.
(2.) The contents of the complaint (Annexure P-1) read as under:- "That complainant is the Proprietor of M/s Singla Trading Company Panchkula Road Barwala. The company of complainant's deals in supplying the Poultry Feeds etc. whereas the accused have a poultry farms at the above stated address. The accused have purchased the poultry feeds from the trading company of complainant. On 19.4.2006, the accused purchased poultry feeds from complainant vide Bill No. 603, and to make the payment of the same, issued two cheques bearing Nos. 118864 & 118865 both dated 27.11.2007 of worth Rs. . 80,000/- and 27,621/- respectively, payable at UBI Bank Sector-8, Panchkula. The accused have further purchased the poultry feeds from complaint on 26.4.2006 vide bill No. 604 and to make the payment of the poultry feed accused have issued cheque bearing No. 118867 dated 27.11.2006 of worth Rs. . 1,28,947/- payable at UBI Bank Sector-8 Panchkula. Therefore accused again purchased poultry feeds from complainant on 28.4.2006 of worth . 44,908/- payable of the same. While issuing the cheques in favour of complainant, the accused have assured that the cheques will be honoured on presentation to the bank. 2. That as per assurances of the accused, the complainant presented the cheques in the bank for encashment but all the four cheques were dishonoured with the remarks "Insufficient Funds" vide bank memo dated 21.12.2006. 3. That thereafter the accused have been served with a legal notice dated 23.12.2006 requesting to make the payment of aforesaid cheques. On receipt of the legal notice, the accused contacted the complainant and requested to make the payment of Rs. . 80,000/- against cheque No. 118864 & Rs. . 27,621/- against Cheque No. 118865 and for the balance payment you had issued two cheques bearing No. 118871 amounting to Rs. . 1,28,947/- dated 22.1.2007 and cheque No. 118872 amounting to . 44,908/- dated 22.1.2007 both payable at UBI Bank Sector-8, Panchkula. The accused assured the complainant that the cheques issued by the accused will be honoured definitely on the presentation. 4. That as per assurances given by the accused, the complainant presented the cheques in the bank for encashment but both the cheques were dishonored with the remarks "Insufficient Funds" vide bank memo dated 5.2.2007. The complainant again served upon accused with a legal notice and requested to make the payment of cheque amount but despite that the accused failed to make the payment of cheque amount. 5. That again the cheques could not be honoured due to fault on the part of accused and the accused had played a fraud upon the complainant as well as cheated complainant intentionally, as the accused have issued the cheques with dishonest intention, knowingly that there are insufficient funds in the account of the accused. 6. That complainant is legally entitled to recover/receive the cheques amount from the accused and the accused are legally bound to pay the cheques amount to the complainant. 7. That the act and conduct of the accused established the deceitful means and intention of the accused that has defrauded the complainant. Under these circumstances the accused committed an offence under Section 138 of the Negotiable Instruments Act as amended upto date, by issuing the cheque in question; which was dishonoured on its presentation to the concerned bank. The accused has cheated and deceived the complainant intentionally and wilfully. 8. That the present complaint is being filed within limitation as prescribed under the Act. 9. That the cheque in question was handed over to the complainant by the accused at the residence of the complainant at Sector-20, Panchkula and the information regarding dishonouing of the cheque in question was received by the complainant at his residence at Panchkula and the banks of both the parties are situated at Panchkula which is within the jurisdiction of this Hon'ble Court and hence this Hon'ble Court has got the jurisdiction to entertain and try the present complaint. 10. That the cause of action arose in favour of the complainant and against the accused when the cheque in question was issued to the dependent by the accused and thereafter when the said cheque was dishonoured by the concerned bank on its presentation and also when the legal notice was served upon the accused to make the payment, but the accused had failed to discharge his liabilities within the stipulated period as mentioned in the notice, hence the necessity has arisen to file the present complaint. 11. That the requisite court fee has been affixed on the complaint. It is, therefore, respectfully prayed that the accused may kindly be summoned, tried, and punished in accordance with law for the commission of offence under Section 138 of the Negotiable Instruments Act and other relevant provisions."
(3.) Learned senior counsel for the petitioners has submitted that the cheque amount in question has already been paid to the respondent. Hence, the continuation of criminal proceedings against the petitioners were nothing but an abuse of process of law.;