- (1.) THIS is a petition filed under Section 482 Cr.P.C. seeking quashing of the complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act).
(2.) THE facts averred in the petition may now be noticed. The parties entered into an agreement to sell on 27.02.2007 the land measuring 1500 square yards in village Bajidpur Saboli. The total sale consideration agreed upon was settled at Rs.12 lacs. The entire sale consideration was paid by the petitioner to the respondent and the agreement to that effect was executed. The respondent failed to execute the sale deed and demanded some more payment. In order to satisfy the respondent, the petitioner gave a cheque of Rs.2,25,000/ - thinking that the same will be encashed when the sale deed would be executed. The cheque was presented for encashment which was dishonored and the respondent lodged a complaint under the N.I. Act. The petitioner was summoned by the trial Court and the petitioner appeared and had pleaded that he had filed Crl. Miscellaneous No.35940 of 2012 before the High Court for quashing of the complaint and the subsequent proceedings as the cheque was not issued for a legally enforceable debt and it was towards the final payment of the plot and the complainant had failed to execute the sale deed and he was ready to pay. The High Court vide its order dated 16.11.2012 directed the petitioner to approach the trial Court. The petitioner moved an application before the trial Court and offered to compound the offence and he was ready to pay the amount as per Damodar Prabhu's case but his application was dismissed as the complainant failed to give his consent. The petitioner's case is that the amount payable towards an agreement to sell could not be termed as a debt and the respondent was refusing to execute the sale deed after receiving the entire payment and the complaint could not proceed. It was further pleaded that the complainant in his statement had stated that the sale consideration was Rs.27 lacs and he had admitted the receipt of the entire amount except Rs.2.25 lacs for which the cheque was given. It was pleaded that the complainant had received Rs.24.75 lacs and failed to execute the sale deed and the G.P.A. given in favour of the petitioner has been cancelled. It was pleaded that the proceedings under Section 138 of the N.I. Act could not be permitted to be used as a tool of repression and the respondent has become dishonest.
(3.) NOTICE was issued to the respondent who failed to appear. The counsel for the petitioner has taken me through the record and has urged that the petitioner was ready to deposit a sum of Rs.4.50 lacs against the cheque of Rs.2.25 lacs and the proceedings should be quashed and he would approach the Court to enforce his civil rights. It was urged that as directed by the High Court, the petitioner had approached the trial Court and had offered to compound the offence and pay the interest as well as the amount as directed in Damodar Prabhu's case but the complainant failed to give his consent and in such a scenario such a complaint should not be allowed to proceed. It was urged that petitioner has been running after the complainant and he has also cancelled the general power of attorney. It was urged that initially the amount that was agreed was a little over Rs.12 lacs and in the agreement placed on record, the fact was recorded that the entire consideration amount has been received and a separate receipt was executed which is Annexure P -4. It was urged that the complainant had admitted to have received the amount and his statement (Annexure P -5) in this regard is available on record. It was urged that initially when the petition was filed an interim direction was issued that the petitioner will deposit a bank draft in the name of the complainant along with the cost and interest @ 10% and it was offered before the trial Court but the complainant refused to accept the same and they have placed the order on the record. The counsel for the petitioner contends that the complaint and the subsequent proceedings should be quashed as the complainant has become dishonest.;