TaxTMI 
TaxTMI 
2021 (2) TMI 1238
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....ondent and were dishonoured. Because of that dishonour in spite of the issue of notice the respondent did not come forward to pay the amount or discharge the liability so STC no 214 of 2011 and STC number 205 of 2011 were filed by the petitioner before the jurisdictional judicial magistrate court. On the receipt of the summons filed a private complaint before the Trial court stating that the cheques were not issued by the respondent towards any liability but even as per the statement of accounts presented by the petitioner these two cheques were accounted for. As per the business agreement between the parties, on the credit basis, the respondent used to issue cheques and those cheques even after proper accounting have been mis-utilised by the petitioner and thereby the petitioner has committed offences punishable under sections 120 B, 199, 406 and 467 Indian penal code. On the basis of the complaint, the trial court took cognizance of the offence and so petition is filed by the petitioner to quash the private complaint mainly on the ground that the issue of the cheques were not denied and disputed by the respondent and there was a legally enforceable liability and as such no offenc....
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....he respondent, in the private compliant, will not attract any offence. According to the petitioner, those facts cannot be taken or be used for the purpose of filing the private compliant. 8. Next argument, on side of the petitioner, is that the Complaint has been filed belatedly knowing fully well that the notice was issued as early as in 2012and whereas the complaint has been filed much after of the period of limitation prescribed in section 468 of criminal procedure code. 9. According to the learned counsel for the petitioner by relying upon judgments of the Hon'ble Supreme Court reported in i) Eicher Tractor Limited and Others Vs Harihar Singh and Another (2008) 16 Supreme Court Cases 763, ii) Mahindra & Mahindra Financial Services Limited and Another Vs Rajiv Dubey (2009) 1 Supreme Court Cases 706 and iii) D.P.Gulati, Manager Accounts, Jetking Infortrain Limited Vs State of Uttar Pradesh and Another have contended that when a criminal prosecution is initiated under Section 138 of the Negotiable Instruments Act, if any counter complaint is filed as a counter blast to delay the proceeding, then it will be an abuse of process of the Court and is liable to be quashed. Acc....
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....e defacto complainant and so, the present case, must be transferred to the Court to which the cases filed under Section 138 of Negotiable Instruments Act are pending. According to him, the Hon'ble Supreme Court, thought it fit not to quash the counter case and thought it fit to direct joint trial. So, question which arises for consideration is whether this is a fit case for quashment or for ordering joined trial. 12. The next contention on the part of the respondent is that fraud has been committed by the petitioner by withholding the relevant document dated 01.10.2011, only the petitioner has played fraud upon the Court, while filing the private complaint, under Section 138 of Negotiable Instruments Act. He further rely upon the constitutional judgment of the Hon'ble Supreme Court reported in R.C.Lahoti and Others Vs Meenakshi Marwah and Another 2005 (2) Supreme 549 for the purpose of argument that for filing private complaint for the offence under Section 199 of IPC, there is no bar under Section 195(1) (b) (ii) of Cr.P.C. It is a contention on the part of the petitioner that to file a complaint for an offence under Section 199 of IPC, bar under Section 195 (1) (b) (ii....
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.... as mentioned earlier vide in his reply notice, regarding the disputed cheques, we find entry dated 05.07.2011 and 08.08.2011. According to the respondent, this statement of account has been suppressed, while filing the cases by the petitioner in STC.No.214/11 & STC.No.205/11. According to the respondent, these two cheques were already given discharge and accounted. But, later, they have been forged and presented for encashment. So, according to him, forgery and other offences are clearly made out. 16. Moreover, from the discussion made above and as per the statement of accounts and as well as from the reply notice sent by the respondent, it is seen that outstanding amount is liable to be settled. For which, as mentioned earlier, the respondent has sought accommodation of the petitioner for settlement through negotiation across table and also requested time for settling the accounts. 17. Para 1 & 2 of the reply notice reads as under:- "2.7.Hence, it is important to mention that your client had attempted to utilize unlawfully certain cheque leafs for which payments have already been received by your client. In any event, the Statement of Account is not admitted by my ....