It has been contended by learned Sr. Counsel for
the applicant that even if the averments made in the
complaint
are
taken
into
consideration,
these
by
themselves do not prove any offence against the applicant
because, firstly, being a Government Servant/Engineer in
PWD, the parties involved in the present litigation, could
not participate either actively or in the form of sleeping
partnership in the Company, which was assigned the work
of construction of bridge by the PWD itself, where they were
serving and, secondly, paragraph 3 of the complaint
adverts that after the release of first payment, the applicant
Mr. Negi severed his relations from the Company and took
away the entire profit of the first payment, which was to the
tune of Rs. 6,97,749/-. Hence, when the payment itself was
to the tune of Rs. 6,97,749/-, then how amount of Rs.
9,30,000/- can be worked out to be the profit out of the
said amount.
Learned Counsel for the complainant respondent
argued that the cheque amount, in question, is a legally
enforceable debt, as has been explained in the explanation
appended to Section 138 of the N.I. Act. This contention is
4
not tenable because when the entire transaction (if any)
between the parties itself is based upon an illegal
partnership, then the cheque issued on account of the said
partnership firm by either of the parties cannot be termed
as a legal and valid transaction, much less a legally
enforceable debt by any stress of imagination.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
CRIMINAL MISCELLANEOUS APPLICATION No. 699/2009
(Under Section 482 of the CrPC)
Parmesh Singh Negi
Versus
Ganga Singh Matiyali
8th October, 20121
Citation;2013 ALL M R (Cri)JOURNAL81
Hon’ble Servesh Kumar Gupta, J.
Heard learned Counsel for the parties and
perused the papers on record.
2.
It appears that the accused applicant and the
complainant respondent both are the engineers in the
Public Works Department, Uttarakhand (for short, PWD).
The work of construction of a bridge through Panchaghati
Construction Company (for brevity, the company) was
undertaken by the PWD. The cost of the said project was
rupees thirty six lakhs.
3.
It appears that in addition to their official duties,
both the litigating engineers, in some form or the other,
had their sleeping partnership in the Company. The
Company started the construction work, wherefor first
payment to the tune of Rs. 6,97,749/- was made by the
PWD to the Company.
4.
As per the averments of the complaint, the
applicant petitioner separated himself from the Company
after the release of the first payment, as indicated above.
Subsequent
thereto,
when
he
was
asked
by
the
complainant Ganga Singh Matiyali to clear the accounts
2
out of the profits so received by him, accused applicant
Parmesh Singh Negi allegedly issued him a cheque of Rs.
9,30,000/- drawn at Nainital Bank, Almora. The said
cheque,
when
presented
by
the
complainant,
got
dishonoured on 23.5.2009 and the same was returned
unpaid
to
the
complainant
by
the
bank
with
the
endorsement “insufficient fund”. So, a notice under Section
138(b) of the Negotiable Instruments Act was issued by
Ganga Singh Matiyali to Parmesh Singh Negi demanding
payment of the cheque amount. When the payment was not
made by Mr. Negi, the impugned complaint case no.
392/2009 was lodged on 6.7.2009 under Section 138 of the
N.I. Act against him by Mr. Matiyali in the Court of Chief
Judicial Magistrate, Champawat.
5.
Learned
Magistrate,
after
recording
the
statement of the complainant, passed the impugned order
of cognizance dated 20.7.2009 and summoned the accused
applicant to stand trial for the said offence under the
Negotiable Instruments Act.
6.
It has been contended by learned Sr. Counsel for
the applicant that even if the averments made in the
complaint
are
taken
into
consideration,
these
by
themselves do not prove any offence against the applicant
because, firstly, being a Government Servant/Engineer in
PWD, the parties involved in the present litigation, could
not participate either actively or in the form of sleeping
partnership in the Company, which was assigned the work
of construction of bridge by the PWD itself, where they were
serving and, secondly, paragraph 3 of the complaint
adverts that after the release of first payment, the applicant
Mr. Negi severed his relations from the Company and took
3
away the entire profit of the first payment, which was to the
tune of Rs. 6,97,749/-. Hence, when the payment itself was
to the tune of Rs. 6,97,749/-, then how amount of Rs.
9,30,000/- can be worked out to be the profit out of the
said amount.
7.
Learned Counsel for the respondent further
argued that the typed version, referred to at page 19 of this
petition, is not correct. Photostat copy of the original
document, annexed as Annexure No. 4 to the petition, also
displays the amount of Rs. 4,16,044/-, which was in
addition to the above amount. So, even if this amount is
taken into consideration for a moment, then too the entire
amount paid to the Company comes to nearly rupees
eleven lakhs. In this amount of rupees eleven lakhs, cost of
construction is also included. So, it was not possible that
out of rupees eleven lakhs, Rs. 9,30,000/- was towards the
profit, and after working out the same, a cheque of
equivalent
amount
was
given
by
Mr.
Negi
to
the
complainant.
8.
Besides, it has also been argued by learned Sr.
Counsel for the applicant that as per the certificate, issued
by Chief Engineer Level I, PWD (Annexure 3 to the petition),
the said Company/Firm was having four partners, namely,
Govind Bhallabh, Ajay Gadkoti, Hemand Gadkoti and
Prakash Pangari. Nowhere the names of either of these two
engineers have been mentioned as partners in the said
Firm.
9.
Learned Counsel for the complainant respondent
argued that the cheque amount, in question, is a legally
enforceable debt, as has been explained in the explanation
appended to Section 138 of the N.I. Act. This contention is
4
not tenable because when the entire transaction (if any)
between the parties itself is based upon an illegal
partnership, then the cheque issued on account of the said
partnership firm by either of the parties cannot be termed
as a legal and valid transaction, much less a legally
enforceable debt by any stress of imagination.
10.
For the reasons recorded above, impugned
proceedings cannot be permitted to progress anymore.
Order
of
cognizance
and
entire
proceedings
of
the
impugned complaint case are liable to be quashed.
11.
Consequently, petition is allowed. Order of
cognizance dated 20.7.2009, passed by the Chief Judicial
Magistrate, Champawat as well as the entire proceedings of
Criminal Case No. 392/2009, Ganga Singh Matiyali v.
Parmesh Singh Negi, under Section 138 of the Negotiable
Instruments Act are hereby quashed.
12.
Inform the court concerned accordingly.
(Servesh Kumar Gupta, J.)
No comments:
Post a Comment