TaxTMI 
TaxTMI 
2025 (8) TMI 1338
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....al Magistrate, Jammu, and setting aside of impugned order dated 05.06.2018, whereby cognizance has been taken in the complaint. 2. Brief facts which led to filing of this petition are that the petitioner intended to purchase 2 kanals of land situated at village Narsoo, Tehsil & District Udhampur; that the respondent entered into an agreement to sell with the petitioner on 25/10/2017, for the aforesaid land under Khasra No. 684/ 538/ 499/340, recorded by Mutation No. 511; that the total sale consideration was fixed as Rs.. 20,00,000/-, out of which Rs.. 10,00,000/- was paid (Rs.. 9,00,000/- cash and Rs.. 1,00,000/- by cheque) and two security cheques of Rs.. 5,00,000/- each, were also issued; that on the same day, the respondent executed ....
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.... The petitioner replied to the legal notice on 20/05/2018 denying liability, contending that cheques were issued as security and no sale deed was executed; hence, no legally enforceable debt exists. The petitioner claims that the complaint under Section 138 NIA is an abuse of process of law, filed to extort money, and that the respondent acted with fraudulent intent from the beginning. Hence the present petition is filed before this Court seeking to quash the complaint under Section 138 NIA and consequential order dated 05/06/2018 passed by the learned Municipal Magistrate, Jammu. 5. Notice, issued to the respondent, did not evoke any response and substituted service was ordered, however, despite service of notice published in Daily Exce....
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.... by the respondent, to enforce the contractual liability against the petitioner, with regard to payment of cheque amounts which had been issued as security only, subject to the conditions of the agreement on its performance. Hence, the complaint and the cognizance both impugned were liable to be quashed. 9. In the case on hand, petitioner had issued undated cheques of Rs.. 5,00,000/- each, in terms of the agreement of sale dated 25.10.2017. The respondent has failed to discharge his obligations under this agreement and without discharging his obligations under the agreement of sale, presented the cheques, for their encashment, which were allegedly dishonoured. 10. Perusal of the case file would show that a complaint under Section 138 ....
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....a security. As dispute arose between the parties, the cheque is now utilized by the complainant to resort to Sections 138 of the Act by filing in a date convenient to him. 9. xxxx 10. Therefore, I am of the considered view that as an undated cheque having been given only as security, the provision of Section 138 of the Negotiable Instruments Act are not at all attracted and hence, the complaint against the accused under Section 138 of the Negotiable Instruments Act cannot be maintained at all." Hon'ble High Court of Kerala, in case titled "Sri H. Ananda V. Mrs. Stella Annextetia D'Silva' in Criminal Appeal No.803/2007 dated 07.04.2014, held that 'for an offence under Section 138 of the Negotiable Instruments Act, 1881, ....
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....r taking the possession of the land by the 2nd party i.e. petitioner herein. 14. Petitioner's case is that on execution of 'agreement to sell' and the 'power of attorney' by the respondent in favour of the petitioner, he had made efforts to take over the possession of the land, however, on demarcation, the land identified was found not to be in the name of the respondent herein. As such, the 'agreement to sell' could not be executed into the 'sale deed' for want of possession and title of the land in question. From the covenant no.6 of the agreement to sell, it is apparent that taking possession of the land is a condition precedent, to encash the two cheques amounting to Rs.. 5.00 lac each. The petitioner has also placed on record a copy....