C482/496/2023 of PYARMID FINMART PVT LTD Vs PRASHANT GAHLOT

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application U/s 482 No. 496 of 2023

28 February, 2025

Pyramid Finmart Pvt Ltd and Ors. --ApplicantsVersus

Prashant Gahlot

--Respondent

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-Presence:

Mr. Karan Anand, learned counsel for applicants. Mr. Tapan Singh, learned counsel for respondent-complainant.

Hon’ble Pankaj Purohit, J. (Oral)

By means of the present C482 application, the applicants have challenged the summoning order dated 20.04.2017 in Complaint Case No.1652 of 2017, Prashant Gahlot Vs. Pyramid Finmart Pvt. Ltd. and Others, passed by the learned Second Additional Civil Judge (JD)/Judicial Magistrate, Dehradun, whereby, the applicants were summoned under Section 138 of the Negotiable Instruments Act (hereinafter to be referred to as ‘the Act’) along with the entire proceedings of the aforesaid criminal case. 2. The facts which are not in dispute are that cheque No.427069 dated 20.01.2017 for Rs.5,32,998/- was issued by the applicants to the respondent-complainant. He presented that cheque to his banker and the same was dishonoured by the Bank vide memo dated 18.02.2017 with remark ‘Drawers signature differs’. He sent legal notice dated 07.03.2017 stating the entire facts of dishonour of the cheque on the ground as stated above and called upon the applicants to pay the amount of

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aforesaid cheque i.e. Rs.5,32,998/-(Rupees Five Lacs Thirty Two Thousand Nine Hundred Ninety Eight Only) to him along with Rs.5,500/- as cost of the notice, within 15 days from the date of receipt of this notice. Applicants despite service of notice upon them on 15.03.2017, failed to pay the amount under cheque in-dispute, rather reply dated 27.03.2017 was sent by the applicants through their counsel by speed post, wherein, issuance of cheque was admitted, but, it has been stated that Rs.40,000/- was given to the respondent-complainant through NEFT on 15.02.2017. The receipt of the aforesaid amount through NEFT was confirmed. It was also stated in the reply notice that the respondent-complainant promised to return the cheque in-dispute for adjustment of the aforesaid amount of Rs.40,000/-, but the respondent-complainant has deposited the same for encashment. The applicants in their reply notice asked the respondent-complainant to withdraw the notice issued and sent back the cheque in-dispute, so the necessary steps be taken to issue fresh cheque after adjustment.

3. The respondent-complainant on dishonour of cheque in-dispute filed complaint case No. 1652 of 2017, Prashant Gahlot Vs. Pyramid Finmart Pvt. Ltd. and Others, in the Court of learned Second Additional Civil Judge (JD)/Judicial Magistrate, Dehradun, on 20.04.2017. The learned Magistrate took the cognizance of the matter and summon the applicants under Section 138 of the Act on the very same day i.e.20.04.2017.

2025:UHC:14594. Feeling aggrieved by the cognizance/ summoning order dated 20.04.2017 as well as the launching of the complaint case, the applicants are before this Court.

5. The main ground of challenge as canvassed by the learned counsel for the applicants in the C482 application is that sum of Rs.40,000/- was paid by the applicants through NEFT vide Cheque No.050454 dated 15.02.2017 after discussion with the respondent-complainant on 20.01.2017 and the respondent-complainant shall return the cheque in-dispute to the applicants, but, instead of returning the cheque, he deposited the same and got in dishonoured; sent legal notice and initiated the prosecution against them. It is contended by the applicants that once the part-payment has been made of the amount under cheque in-dispute, the endorsement of such part-payment must have been made upon the cheque and the cheque shall be presented for the balance amount to the Banker. But, as agreed, the respondent-complainant should return the cheque in-dispute to the drawer of the cheque and fresh cheque would be issued after adjustment of the amount of Rs.40,000/- allegedly paid by the applicants. Thus, it is contended that the cheque in-dispute does not represent the enforceable debt at the time of encashment.

6. Learned counsel for the respondent-complainant has filed counter affidavit and in Para 10 of the counter affidavit, he vehemently denied the part-payment of Rs.40,000/- towards the amount of

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cheque in-dispute and he further denied in the counter affidavit about making any promise to return the cheque in-dispute for adjustment of Rs.40,000/-. It was explained further that Rs.40,000/- was paid as part-payment against the applicants’ amount of Rs. 91,992/- to the respondent-complainant by the applicants, which was the assured return agreed by the applicants in Memorandum of Understanding (MOU) dated 19.07.2013 (Annexure No.6 to the affidavit in support of C-482 application).

7. Heard learned counsel for the parties.

8. Learned counsel for the applicants reiterated the argument very vehemently and placed reliance upon Section 56 of the Act saying that the part-payment should be endorsed upon the cheque in-dispute. Once, the respondent-complainant failed to endorse the part-payment, no case of dishonouring of the cheque could be lodged against the applicants. 9. Learned counsel for the applicants in support of his contention, relied upon judgment rendered by the Hon’ble Apex Court in Criminal Appeal No.1497 of 2022 dated 11.10.2022 Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel And Anr.

10. Learned counsel for the respondent-complainant altogether denied the part-payment of the amount under cheque in-dispute, rather, he argued that the amount of Rs.40,000/- was paid as part payment of the balance amount of Rs.91,992/-, which was assured return agreed by the applicants as per MOU dated 19.07.2013.

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11. Having heard the learned counsel for the parties and having gone through the pleadings as well as the case law relied upon by the learned counsel for the applicants, this Court is of the firm opinion that the case law which was relied upon by the learned counsel for the applicants is of no help to the applicants in the given facts and circumstances of the case. The respondent-complainant denies the part-payment of amount of cheque in-dispute, and, thus, the disputed question of facts arises, as to whether the part-payment has been made towards the cheque in-dispute or not. Such disputed question of facts could only be gone into by the trial court after evidence having been adduced by both the parties. This Court while sitting in the jurisdiction under Section 482 of Cr.P.C., cannot examine the disputed question of facts, where, the respondent-complainant altogether denies the part payment. In such situation, the argument advanced by the learned counsel for the applicants cannot found favour with this Court.

12. In this view of the matter, the present C482 application fails and the same is accordingly dismissed.

13. Interim order, if any, stands vacated. 14. Pending application, if any, also stands disposed of.

(Pankaj Purohit, J.) 28.02.2025