Punjab-Haryana High Court
Amartex Industries Ltd. And Another vs M/S Lord Krishna Concretech India (P) ... on 3 April, 2013
Author: Sabina
Bench: Sabina
Criminal Misc. No.M- 3838 of 2010 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.M- 3838 of 2010 (O&M)
Date of decision: 3.4.2013
Amartex Industries Ltd. and another
......Petitioners
Versus
M/s Lord Krishna Concretech India (P) Ltd.
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.R.Kartikey, Advocate for
Mr.Sanjiv Bansal, Advocate,
for the petitioners.
None for the respondent.
****
SABINA, J.
Petitioners have preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of complaint No.1954 dated 2.7.2009 (Annexure P-4) under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (the Act for short) read with Section 200 Cr.P.C. and all the subsequent proceedings arising therefrom. Criminal Misc. No.M- 3838 of 2010 (O&M) 2
Learned counsel for the petitioners has submitted that five post dated cheques were issued to the respondent qua construction of work. Four cheques were got encashed by the complainant but the payment qua fifth cheque was stopped as the requisite tax to the tune of ` 3,56,617/- had not been deducted from the total payment. Despite this, cheque No.224910 was presented by the complainant for encashment. The payment of the cheque was stopped. In reply to the notice issued by the complainant, the entire position was explained. Demand draft No.522545 dated 8.6.2009 in the sum of ` 5,89,485/- drawn at State Bank of India was sent to the complainant along with the reply, which had been duly encashed by the complainant. Learned counsel for the petitioners has submitted that the demand draft dated 8.6.2009 in the sum of ` 5,89,485/- sent to the complainant along with reply, has been duly encashed by the complainant. Amount of ` 3,56,617/- has been deposited by the petitioners towards construction tax.
None has appeared on behalf of the respondent despite service.
Annexure P-1 is the legal notice served by the complainant on the petitioners with regard to dishonour of cheque dated 16.5.2009 in the sum of ` 9,46,102/- .
Annexure P-2 is the reply submitted to the said notice. In the reply, petitioner had submitted that no offence under Criminal Misc. No.M- 3838 of 2010 (O&M) 3 Section 138 of the Act was made out. In fact the payment with regard to the cheque in question had been stopped as deduction with regard to the construction tax amounting to ` 3,56,617/- had not been made while issuing the cheque. When the cheque in question was returned un-paid, there was sufficient amount in the account of the petitioners. However, the payment of the cheque in question was stopped as due to inadvertence, the construction tax had not been deducted while issuing the cheque in question.
In the reply (Annexure P-2), it was further averred as under:-
"In addition, I wish to bring the true facts, which compelled my client to issue stop payment instructions, on record, which are: -
(i) My client had got the construction work done from you at their plot no. 72 Industrial Area Daruhera and in discharge of the said liability, my client had issued 5 cheques for total payment of ` 47,06,102/- the details of which is given hereunder :-
Sr.No Cheque No. Dated Amount Bank
.
1 224906 17.04.2009 9,40,000/- SBI Gurgaon
2 224907 25.04.2009 9,40,000/- SBI Gurgaon
3 224908 02/05/09 9,40,000/- SBI Gurgaon
4 224909 09/05/09 9,40,000/- SBI Gurgaon
Criminal Misc. No.M- 3838 of 2010 (O&M) 4
Sr.No Cheque No. Dated Amount Bank
.
5 224910 16.05.2009 9,46,102/- SBI Gurgaon
(ii) You had accepted the said cheques towards full and final settlement of your dues.
(iii) The cheques from Serial No.1 to 4 got encashed in your account. However, when the cheque at Sr.No.5 was due for presentation, it transpired that the accounts branch had inadvertently not deducted the construction tax leviable upon you, which my client was statutorily bound to deduct before settling your final account. The liability of that construction tax to be deducted from the total payment came to ` 3,56,617/- In such eventuality, my client having deposited the said amount in your account with the statutory authority was entitled to deduct the said amount from your last and final cheque.
v) In the above eventuality, my client had, in a bonafide belief, informed you telephonically with regard to my client having issued stop payment instructions to its Banker for not encashing cheque no 224901 dated 16.05.2009 for ` 9,46,102/- and had required to be depute your Criminal Misc. No.M- 3838 of 2010 (O&M) 5 representative to collect the cheque for the balance amount payable to you after deduction of the construction tax which comes to ` 5,89,485/- and also to collect the supporting documents evidencing deposit of construction tax in your account with the statutory authority.
vi) It appears that you have presented the said cheque despite intimation, which obviously due to stop payment instructions had to be returned unpaid I, have categoric instructions from my client to inform you that my client has no intention to withhold your due payment and in order to make the payment towards the balance amount, my client has got issued Demand Draft No.522545 dated 08.06.2009 for ` 5,89,485/- drawn at State Bank of India, which is being sent to you alongwith the present reply and the said cheque has also been imprinted on the back side of the last page of the present reply-notice. You can, depute you;
representative on any working day to collect the supporting documents with regard to the deposit of ` 3,56,617/- by my client towards construction tax with the statutory authority, so as to enable you to claim the said amount in your accounts"
Criminal Misc. No.M- 3838 of 2010 (O&M) 6
Complaint in question was filed by the respondent without disclosing the contents of the reply submitted by the petitioners to the legal notice sent by the complainant. A perusal of the complaint (Annexure P-4) reveals that the factum of encashment of draft issued by the petitioners towards full and final payment has also not been disclosed in the complaint. Thus, the complainant had not approached the Court with true facts.
The contentions raised by the petitioners remain un- rebutted as respondent has failed to appear despite service. In the facts and circumstances of the present case, continuation of criminal proceedings against the petitioners would be nothing but abuse of process of law. In fact, the payment of the cheque in question was stopped as due to inadvertence the construction tax had not been deducted by the petitioners. After deducting the construction tax from the cheque amount, a draft to the tune of ` 5,89,485/- was sent to the respondents and as per the case of the petitioners, the same has been duly encashed by the complainant. Further, it is the case of the petitioners that the construction tax to the tune of ` 3,56,617/- has been deposited by the petitioners.
Accordingly, the petition is allowed. Criminal complaint No.1954 dated 2.7.2009 (Annexure P-4) under Section 138 read with Section 142 of the Act read with Section 200 Cr.P.C. and all the subsequent proceedings arising therefrom are quashed.
(SABINA)
April 03, 2013 JUDGE
anita