Delhi High Court
Harish Kapoor vs Akansha Gupta on 4 December, 2008
Author: Aruna Suresh
Bench: Aruna Suresh
"REPORTABLE"
33#
* HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. 3869/2007
Date of decision: 4.12.2008
# HARISH KAPOOR ..... PETITIONER
! Through : Ms. Geeta Luthra, Adv. with
Mr. Attin Shankar Rastogi, Adv.
Mr. Shivkant Arora, Adv.
Versus
$ AKANSHA GUPTA .......RESPONDENT
^ Through : Mr. Kumar Sushobhan, Adv.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
ARUNA SURESH, J. (Oral)
1. Shashank Kapur was married to Akanksha Crl.M.C. No.3869/2007 Page 1 of 10 Gupta/complainant on 27.6.2000 according to Hindu rites and ceremonies in Delhi. Shashank Kapur happens to be son of the petitioner. However, disputes and differences arose between the complainant and her husband which resulted into filing of divorce petition by Shashank Kapur, her husband.
2. Complainant lodged FIR No. 259/07 dated 12.4.2007 under Sections 498-A/406/34 IPC at Police Station Punjabi Bagh against her husband, Shashank, the present petitioner and other co- accused persons with allegations of cruelty for demand for dowry.
3. Petitioner was arrested in the said case. He was produced before the learned MM on 4.5.2007 where petitioner made a proposal for settlement and agreed to pay to the complainant an amount of Rs. 2.5 crores towards settlement of her claims regarding maintenance, alimony etc. with her husband Shashank Kapur and also that parties would seek mutual divorce by adopting proper forum for the same. Consequently petitioner Crl.M.C. No.3869/2007 Page 2 of 10 handed over cheques No. 203022 dated 8.5.2007 for a sum of Rs. 5,00,000/- drawn on Bank of India, 203021 dated 8.6.2007 for a sum of Rs. 1,20,00,000/- drawn on Bank of India and 203023 dated 8.8.2007 for a sum of Rs. 1,25,00,000/- drawn on Bank of India in terms of the settlement.
4. Complainant/respondent presented cheque No. 203023 dated 8.8.2007 for Rs. 1,25,00,000/- drawn on Bank of India in her account for encashment which was dishonoured on 20.8.2007 with the remarks "Payment Stopped by the Drawer". Complainant thereafter issued legal demand notice dated 31.8.2007 under the Negotiable Instruments Act (hereinafter referred to as NI Act) and when petitioner and other accused persons failed to make the payment on demand of the dishonoured cheque, complainant filed a complaint under Section 138 of the NI Act against the present petitioner and Girish Kapur, the other co-accused.
5. Vide order dated 5.11.2007 the learned trial court while dismissing the complaint being complaint No. 18112/2007 against accused Girish Kapur was Crl.M.C. No.3869/2007 Page 3 of 10 pleased to summon the petitioner.
6. It is submitted by counsel for the petitioner that alone said three cheques were given pursuant to the settlement which was entered into between the parties under duress and coercion and the said cheques were to be encashed by the respondent at different stages. It is argued that the cheque in question was not given for discharge of debt or any other liability nor does petitioner had any liability towards the respondent. The cheque in question was to be encashed at the time of quashing of FIR No. 259/2007 after respondent and her husband got divorced, however, they had not yet divorced each other and this made the settlement ineffective. Hence, since the settlement did not materialize and ingredients of Section 138 of NI Act are not made out, the impugned complaint and summoning order deserve to be quashed.
7. Learned counsel for the respondent states that petitioner had liability towards the respondent, since it was agreed in the settlement before the trial court that petitioner would pay the respondent Crl.M.C. No.3869/2007 Page 4 of 10 a sum of Rs. 2.5 crores and only on this ground the petitioner was granted bail by the trial court on 4.5.2007. Since, petitioner had liability to pay the amount under the settlement therefore, he has been rightly summoned by the trial court for the offence under Section 138 of the NI Act.
8. Section 138 of the NI Act so far as the relevant for the purposes of the present case reads as follows:
"Sec. 138. Dishnour of cheque for insufficiency, etc., of funds in the accounts.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both:Crl.M.C. No.3869/2007 Page 5 of 10
Provided that nothing contained in this section shall apply unless--
(a)....
(b)....
(c)....
Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
9. For enforcing her claim under Section 138 of the NI Act, complainant had to show that the cheque issued in her favour by the petitioner was against any legally enforceable debt or liability.
10. As per the mutual settlement between the parties, petitioner had issued three post-dated cheques of different amounts totalling to Rs. 2.5 crores. As per the settlement, the impugned cheque for Rs. 1.25 crores was to be got encashed by the respondent at the time of quashing of the FIR.
11. Admittedly, no petition for seeking quashing of the FIR has been filed by the respondent or by Shashank Kapur. It is also not disputed that this compromise was arrived at and the cheque was issued by the petitioner when he was in custody and was produced before the Court and had sought his release on bail. Court had granted bail in view Crl.M.C. No.3869/2007 Page 6 of 10 of the compromise having been arrived at between the petitioner and the respondent. Under these circumstances, the impugned cheque cannot be considered as a cheque issued for consideration or in discharge, in whole or in part, of any debt or other liability towards the complainant/respondent. Petitioner being father-in-law of the complainant was not under any obligation, legally or otherwise, to make arrangements and discharge the liability of Shashank Kapur, his son, towards the respondent for her permanent alimony or for return of istridhan or dowry articles. The post-dated cheque issued in a criminal case in a compromise between the parties cannot be considered as payment of any debt or other liability which is legally enforceable against petitioner.
12. In Lalit Kumar Sharma and Another v. State of Uttar Pradesh and Another - (2008) 5 SCC 638 wherein a second cheque was issued on compromise in a complaint under Section 138 of the NI Act, which on presentation was also dischonoured, it was observed that since second Crl.M.C. No.3869/2007 Page 7 of 10 cheque was issued in terms of the compromise, it did not create a new liability and therefore, as the compromise did not fructify, the same could not be said to be issued towards the payment of debt.
13. In the facts and circumstances of this case, since a post-dated cheque was issued which was to be encashed at the time of quashing of the FIR and that too upon a settlement arrived at between the father-in-law and daughter-in-law, it cannot be said that this cheque was issued towards payment of a debt which could be legally enforced by the complainant/respondent against the petitioner. Legally she is entitled to enforce her claims for istridhan, dowry articles and maintenance against Shashank Kapur, her husband, however, respondent is not entitled to enforce such rights against the petitioner and the petitioner under no circumstance was legally liable to pay any amount for settlement of the marital dispute between his son and the respondent.
14. As stated above, respondent deposited this cheque for encashment in her account before approaching Crl.M.C. No.3869/2007 Page 8 of 10 the Court for quashing of the FIR and therefore, the petitioner was within his rights to stop the payment of the cheque as respondent/complainant had failed to fulfill her part of the obligation in terms of the settlement. From the facts and circumstances of the case, it is manifestly clear that the settlement did not fully fructify between the parties and petitioner had no legal liability nor had any debt towards the complainant which could be legally enforced as a debt against the petitioner by the respondent under Section 138 of the NI Act.
15. Hence, no offence can be said to have been made out against the petitioner under Section 138 of the NI Act. The trial court erred in summoning the petitioner on the basis of averments contained in the complaint as he failed to appreciate that the impugned cheque was not issued towards payment of any legally enforceable debt but was for purposes of settlement against the marital dispute between the petitioner's son and the respondent.
16. Hence, petition is allowed. The complaint case No. 18112/2007 and summoning order dated 5.11.2007 Crl.M.C. No.3869/2007 Page 9 of 10 are hereby quashed.
17. Attested copy of the order be sent to the trial court immediately.
(ARUNA SURESH) JUDGE December 04, 2008 jk Crl.M.C. No.3869/2007 Page 10 of 10