N.K. Gupta ORDER
N.K. Gupta, J.
1. This order shall govern the disposal of present matter as well as M.Cr.Cs. No. 2234/2010, 2235/2010, 3827/2010, 3828/2010, 3830/2010, 3842/2010, 3845/2010, 3853/2010, 3866/2010, 3870/2010, 3874/2010, 3876/2010, 3886/2010, 3995/2010, 6887/2010, 6888/2010, 6919/2010, 6920/2010, 6921/2010, 6922/2010, 12346/2010, 11785/2012, 11788/2012, 11789/2012, 11792/2012 and 11794/2012 because facts of such cases are same. However, in the present order facts of the present matter are mentioned.
2. The applicant has preferred the present petition under Section 482 of the Cr.P.C. to quash the proceedings of complaint case No. 2382/2009 pending before JMFC, Narsinghpur for offence under Section 138 of Negotiable Instruments Act (in short "NI Act").
3. The facts of the case, in short, are that, the applicant gave a cheque of Rs. 5 Lacs to the respondent company. Cheque was presented before the concerned bank on 15.6.2009 but, it was dishonoured because the applicant had given instructions to the concerned bank to stop the payment. A demand notice was given on 3.7.2009 and payment could not be received, thereafter, a criminal complaint was lodged before CJM, Narsinghpur, which was transferred to JMFC, Narsinghpur.
4. I have heard the learned counsel for the parties at length.
5. Learned counsel for the applicant submits that the amount of cheque was not recoverable because it was given for the purpose of security and therefore, no complaint under Section 138 of NI Act lies even if the applicant instructed the bank to stop the payment of the cheque. On the other hand, learned counsel for the respondent submits that the amount of cheque was due according to the terms of contract that took place between the parties.
6. If a work contract agreement executed by the parties is considered then, on its internal page No. 3, in para 9, terms and conditions for issuance of the cheque is mentioned, which is reproduced here-below for ready reference:-
"9. SSANGYONG will give Rupees 2 (Two) Crores as interest bearing Mobilisation Advance to the Sub Contractor for the costs of mobilization. The rate of interest being 10% per annum. Half of the amount shall be paid in advance and remaining half shall be paid directly to the suppliers on the behalf of the Sub Contractor, when sub Contractor has achieved 5% of financial progress. Sub Contractor have to submit post dated cheque/cheques of equivalent amount as a security against Mobilization Advance."
According to such condition, the respondent has given a mobilisation advance to the applicant. However, 50% of that amount was directly to be given to various suppliers from whom the applicant took the material and 50% of that amount was to be retained by the applicant to meet out other expenses of contract. However, the applicant was directed to submit post dated cheques equivalent to the amount as security against the mobilisation advance and consequently, he gave 25-26 cheques of various denominations to the respondent.
7. Also, according to the Para 12 of the aforesaid document, recoveries were to be made from monthly running bills of the applicant. It was also quoted in para 12 (C) that mobilisation advance recovery @ 12% from second R.A. bill onwards. Similarly, there was a termination clause of the contract also. In para 8 of that agreement, it was specifically mentioned that the post dated cheques given by the applicant were taken for equivalent amount against mobilisation advance as a security. Hence, such cheques could be encashed by the respondent if the contract is terminated and payment of various bills submitted by the applicant relating to work done by him should have been cleared. It is apparent that various proceedings for recovery of amount relating to work done in compliance to the aforesaid agreement are pending at various forums like Civil Court and Arbitration Tribunal. When various cheques were taken for........