IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE 1

HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY ON THE 7 th OF JULY, 2022

MISC. CRIMINAL CASE No. 1533 of 2016

Between:-

SHEIKH HAMEED S/O LATE SHEIKH FAREED , AGED ABOUT 67 YEARS, KHWAJA MOINUDDIN CHISTHI MEMORIAL SCHOOL, BEHIND KHANSHAH WALI DARGAH P.S. MOGHAT ROAD (MADHYA PRADESH)

.....APPLICANT

(BY SHRI RAKESH KUMAR JAIN, ADVOCATE)

AND

RUPCHANDSA DILIPSA AND SONS THORUGH PROPRIETOR KALYAN JAIN S/O LATE KAILASHCHAND JAIN AGED 65 YEARS OCCUPATION BUSINESS ROOPCHAND SA JAIN MARG HATHKESHWAR WARD, KHANDWA TEHSIL AND DISTRICT KHANDWA (MADHYA PRADESH)

.....RESPONDENT

(NONE FOR THE RESPONDENT)

This mcrc coming on for motion hearing this day, the court passed the

following:

ORDER

Heard.

This petition has been filed under Section 482 of the Cr.P.C. against the order dated 11/3/2014 passed by Judicial Magistrate First Class, Khandwa in Criminal Case No.951/2014 whereby learned JMFC, Khandwa took cognizance against the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (further referred to as the "N.I. Act"Â) on the

2

private complaint filed by Kailashchand Rupchandsa proprietor of Rupchandsa Deepasa & Sons.

Brief facts of the case which are relevant for the disposal of this petition are that earlier Rupchandsa Dilipsa & Sons, through Proprietor Kailash Chand Rupchandsa Jain had filed 11 complainants under Section 138 of the N.I. Act, against the applicant. Those complaints were registered as Criminal Case Nos.4699/09, 1408/08, 4754/09, 4678/09, 5066/09, 4632/09, 4758/09, 5146/09, 3546/08, 2341/09 & 2462/09. On 15/12/2012 applicant and Rupchandsa Dilipsa & Sons, through Proprietor Kailash Chand Rupchandsa Jain entered into the compromise and those cases were disposed of by the JMFC vide order dated 15/12/2012 in compromise. In that compromise, it was agreed between the applicant and Kailash Chand Rupchandsa Jain that regarding earlier transactions Rs.4,22,395/- was due on the applicant. Out of which Rs.1,05,600/- was given by the applicant to the respondent Late Kailash Chand Rupchandsa Jain on the same date and for repayment of the remaining amount Rs.3,38,971/- applicant gave three cheques Nos.102043, 102044, 102045 for the sum of Rs.1,00,000/-, 1,00,000/- and 1,38,971/- respectively to Late Kailash Chand Rupchandsa, out of those cheques, cheque No.102045 dated 15/12/2013 was dishonoured. On that respondent, Late Kailash Chand Rupchandsa Jain filed a private complaint before JMFC, Khandwa. On that complaint Learned JMFC vide order dated 11/3/2014 took cognizance against the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and registered criminal case No.951/2014. Being aggrieved by that order, the applicant filed this petition.

Learned counsel for the applicant submitted that the cheque was not given by the applicant to the respondent Late Kailash Chand Rupchandsa Jain

fo r discharge of any debt or liability. The cheque was given under the compromise, so no offence under Section 138 of the N.I. Act is made out against the applicant. In this regard he has also placed reliance on the judgment of the Hon'ble Supreme Court passed in the case of Lalit Kumar Sharma vs. State of Uttar Pradesh (2008) 5 SCC 638.

This court has gone through the record and argument put forth by the learned counsel for the applicant.

The fact of the case Lalit Kumar Sharma vs. State of Uttar Pradesh (supra) do not match with the present case. In that case company on whose behalf the earlier cheques were issued on 30.11.1999 and 10.12.1999 was having two directors viz. Ashish Narula and Manish Arora. For dishonour of these cheques, both were prosecuted. During the pendency of the complaint, both the parties resolved their differences and entered into an agreement, in terms whereof, Manish Arora issued a cheque on 29.07.2000 which was also dishonoured. The second complaint was filed against 06 persons including Lalit Kumar Sharma, his wife and Bela Narula, besides, Ashish Narula and Manish Arora. Out of these six, Lalit Kumar Sharma, his wife and Bela Narula had filed a petition for quashing the complaint. Apex Court observed that appellants were not signatories to the cheques. The cheque was issued only by Manish Arora in terms of an agreement executed by and between Ashish Narula and the company. So the the liability in question was his personal one. The relevant para 17 of the judgment as thus:

Digitally signed by VARSHA SINGH Date: 2022.07.08 16:51:21 IST SAN Signature Not Verified

"17. Thus, the second cheque was issued by Manish Arora for the purpose of arriving at a settlement. The said cheque was not issued in discharge of the debt or liability of the Company of which the appellants were said to be the directors. There was only one transaction between Shri Ashish Narula, Shri Manish Arora, Directors of the Company and the complainant. They have already been punished. Thus, the question of entertaining the second complaint did not arise. It was, in our opinion, wholly misconceived. The appeal, therefore, in our opinion, must be allowed. It is directed accordingly. Respondent shall bear the costs of the appellants. Counsel's fee assessed at Rs.25,000/-."

While in this case applicant in the compromise proceedings clearly admitted that Rs.4,22,395 was due on him and for discharge of that liability he issued three cheques, so that judgment do not assist the applicant. In the present case earlier cheques as well as subsequent cheques were issued by the applicant to discharge his own debt, therefore, in the considered opinion of this Court, the subsequent complaint is maintainable.

In view of the aforesaid, the petition has no substance, hence petition is