TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 446
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....ich came to be confirmed by the orders passed by the Court of learned Additional Sessions Judge, Rajkot dated 26.02.2020 in the Criminal Revision Applications filed by the petitioners-original accused. 3. The petitioner in Criminal Misc. Application No.5010 of 2020 and Criminal Misc. Application No.5126 of 2020 are the same; whereas, the petitioner in Criminal Misc. Application No.4981 of 2020 and Criminal Misc. Application No.5108 of 2020 is also same and happens to be the Wife of the petitioner in the earlier two petitions. In Criminal Misc. Application No.5010 of 2020 and Criminal Misc. Application No.5126 of 2020, the issue relates to two disputed cheques worth Rs. 42.50 Lacs each whereas, in Criminal Misc. Application No.4981 of 2020 and Criminal Misc. Application No.5108 of 2020, the disputed cheques are worth Rs. 37.50 Lacs each. For the aforesaid four cheques, four different complaints came to be filed, the details of which are shown in a tabular form hereunder: In Criminal Case No. Cheque No. & Date Amount (Rs.) 1 Spl. Cr. App. No.5010 of 2020 Criminal Case No. 4388 of 2019 No.044346 dated 12.01.2019 Rs. 42.50 Lacs 2 Spl. Cr. App. No.5126 of 2....
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....laints came to be filed. 4.1 In Special Criminal Application No.5108 of 2020, the impugned complaint being numbered as Criminal Case No.4390 of 2019 was filed for recovery of an amount of Rs. 5 Lacs in connection with cheque No.407980 dated 12.01.2019 for Rs. 5 Lacs issued by the petitioner. Whereas, in Special Criminal Application No.4981 of 2020, the impugned complaint being numbered as Criminal Case No.4391 of 2019 was filed for recovery of an amount of Rs. 37.50 Lacs in connection with cheque No.407979 dated 12.01.2019 for Rs. 37.50 Lacs issued by the petitioner. 5. While in Criminal Misc. Application No.5010 of 2020 and Criminal Misc. Application No.5126 of 2020, briefly stated, the facts are that petitioner-Dilipbhai Keshavlal Sejpal and respondent No.2-Sunil Vrajlal Shah are Goldsmiths and had business relations. It appears that the petitioner had executed two different agreements to sell dated 02.02.2016 and 09.03.2016 in favour of the respondent-complainant and one of his relatives, namely Mohanbhai Kurjibhai Chaniyara, in respect of two properties bearing Flat Nos. 401 and 201 situated at "Sadguru Sadan" and known as Municipal Employees' Society, which is constructed ov....
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.... 42.50 Lacs drawn on the same Bank in favour of said Mohanbhai Kurjibhai Chaniyara, were issued by the petitioner. However, before the said two cheques could be deposited, the petitioner requested the respondent-complainant not to present the cheques as he was in need of money for the treatment of his father and assured the respondent-complainant that he would issue two new cheques of the said amounts. Therefore, a supplementary compromise agreement dated 12.02.2018 came to be executed between the parties and thereafter, the petitioner issued two cheques - (i) No.044346 dated 12.01.2019 of Rs. 42.50 Lacs in favour of respondentcomplainant and (ii) No.044338 dated 16.08.2017 of Rs. 42.50 Lacs in favour of Mohanbhai Kurjibhai Chaniyara. When the respondent-complainant deposited the cheques, the same was returned with the endorsement of "insufficient Funds". The respondent-complainant, therefore, issued statutory Notice dated 20.02.2019 to the petitioner under Section 138 of the N.I. Act wherein, the respondent-complainant raised a claim of Rs. 85 Lacs being the amount of two cheques and an additional amount of Rs. 10 Lacs towards Legal Consultation / Advocate Fees. The said Notice wa....
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....al demand of Rs. 75 Lacs. Thus, the demand raised in the statutory Notice exceeds the original demand of Rs. 75 Lacs and on this ground itself, the impugned complaints are not maintainable in the eyes of law. 7.2 Learned advocate Mr. Jasani drew attention of the Court to the averments made in the impugned complaints to submit that the original demand was of Rs. 75 Lacs. However, on account of settlement between the parties, fresh cheques were issued in favour of the respondent-complainant. He contended that any subsequent cheque issued on the basis of settlement / compromise would not create any new liability, if such settlement / compromise did not fructify at first place and such liability would not fall within the purview of Section 138 of the N.I. Act since such cheque/s cannot be said to have been issued for the discharge of any legally enforceable debt. As per the version of the respondent-complainant, the amount of cheques is of Rs. 85 Lacs, but the demand raised is for Rs. 95 Lacs, i.e. more by Rs. 10 Lacs. Therefore also, the impugned complaints filed by the respondent-complainant are not maintainable and deserves to be quashed and set aside at the threshold. 7.3 In supp....
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....dings could move further, the parties appear to have reached at some settlement and executed a settlement agreement dated 16.03.2017 whereby, the petitioner had agreed to compensate the respondent-complainant by paying an additional amount of Rs. 10 Lacs towards loss / damages, over and above the amount of Rs. 75 Lacs; and in pursuance of such agreement, the petitioner had issued two different cheques of Rs. 42.50 Lacs each, totalling Rs. 85 Lacs, in favour of the respondent-complainant. 11. It appears that the petitioner could not fulfill the terms of settlement agreement dated 16.03.2017 and requested the respondent-complainant to execute a fresh settlement agreement, which came to be executed on 14.07.2017. In pursuance of said agreement dated 14.07.2017, the petitioner again issued two cheques of Rs. 42.50 Lacs each in favour of the respondent-complainant. However, before the two cheques could be deposited, the petitioner requested the respondentcomplainant not to present the cheques in the Bank on the ground of meeting the medical expenses of his father, who was reported to be ill, which was agreed to by the respondentcomplainant. Therefore, the parties executed another settl....
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.... Criminal Misc. Application No.5126 of 2020, similar is the position. In these cases, the registered Agreement to Sell dated 11.08.2015 came to be cancelled by executing a registered agreement dated 20.02.2018 for Cancellation of the Agreement to Sell. It was in pursuance thereof that the petitioner in these cases had issued the three cheques, as referred to in the earlier part of this judgment and on being dishonored, the statutory demand Notice dated 22.02.2019 under Section 138 of the N.I. Act came to be issued wherein, the respondent-complainant had raised a claim of Rs. 80 Lacs being the amount of three cheques and an additional amount of Rs. 10 Lacs towards Legal Consultation / Advocate Fees. The said Notice was received by the petitioner on 23.02.2019 and when the petitioner failed to make the demand raised, the impugned complaints came to be filed. Thus, the claim raised in the said two criminal complaints are towards the legally enforceable debts. 15. There is no dispute regarding the proposition of law laid down in the case of Vijay Gopala Lohar v. Pandurang Ramchandra Ghorpade's (supra) that the notice issued under Section 138 of the N.I. Act has to be for the cheque am....
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....e above facts, the Apex Court held that the second cheque dated 29.07.2000 was issued in terms of the compromise and it did not create a new liability and therefore, the same cannot be said to have been issued towards payment of debt, even if the compromise had not fructified. 16.1 The facts in the above-referred case and the facts of the cases on hand are different. In that case, on the dishonor of two cheques of Rs. 3 Lacs and Rs. 2 Lacs, a complaint under Section 138 of the N.I. Act came to be registered. Whereas, in the present case, no complaint was registered on the dishonor of the initial two cheques. On dishonor of the initial two cheques, the respondent-complainant had issued statutory Notice to the petitioner dated 13.12.2016 under section 138 of the N.I. Act. Before the complaint could be registered, the parties entered into a compromise and a written agreement came to be executed on 16.03.2017. As observed in the foregoing paragraphs, the parties had executed three different compromise agreements at different times; however, none of them fructified and on dishonor of the subsequent two cheques, viz. (i) No.044346 dated 12.01.2019 of Rs. 42.50 Lacs and (ii) No.044338 da....