V.K.JAIN, J. - (1.)This order will dispose of the above referred petitions. Petitioner No.1 Alliance Infrastructure Project Private Ltd., issued a cheque dated 2nd May, 2008 for a sum of Rs.30,86,000/- and another cheque of the same date for Rs.12 lakhs in favour of the complainant/respondent. The cheques, when presented for encashment, were returned unpaid with the remarks "signature different". When the complainant/respondent approached the petitioners in this regard, they issued three other cheques, one for Rs.12 lakhs, second for Rs.3,29,000/- and the third for Rs.31,91,650/- in lieu of the previously dishonoured cheques. The cheques for Rs.12 lakhs and Rs.3,29,000/- were encashed when presented to the bank, but the cheque for Rs.31,91,650/- was returned unpaid with the remarks "stop payment by the drawer". A legal notice dated 23rd January, 2009 was sent to the petitioners calling upon them to make payment within 15 days from the receipt of notice. The petitioners, however, did not make the payment whereupon a complaint under Section 138/141 of Negotiable Instruments Act read with 141 thereof and also under Section 420 of IPC was filed against them. The petitioners, however, have been summoned only under the provisions of Negotiable Instruments Act. Being aggrieved, the petitioners have filed Criminal Misc. Case 2225/2009 assailing the summoning order.
(2.)Petitioner No. 1 had also issued two other cheques both dated 5th May, 2008; one of Rs.47,84,000/- and the other for Rs.18,60,000/- to the respondent. The cheque for Rs.18,60,000/- was honoured, but the cheque for Rs.47,84,000/-was returned unpaid. When the complainant/respondent approached the petitioners in this regard, they promised to pay the cheque amount within two- three days and thereafter issued another cheque for Rs.49,47,600/- in lieu of the previous cheques. The cheque of Rs.49,47,600/-, when presented to the bank, was returned with remarks "funds insufficient". Consequently, the complaint subject matter of criminal case No. 2224/2009 was filed by the respondent against the petitioners, who were summoned under the provisions of Negotiable Instruments Act.
(3.)It is an admitted case that after issue but before presentation of cheque of Rs.49,47,600/-, petitioner No.1 paid a sum of Rs.16,50,000/- to the complainant/respondent on 7th of October, 2008 by way of RTGS transfer. Though the receipt of the aforesaid amount of Rs.16,50,000/- has not been acknowledged in the legal notice dated 19.12.2008 issued by the respondent through his counsel Mr.Vijay Kumar, when the complainant came in the witness box before the trial court on 11th of September, 2009, he admitted receipt of this payment and also stated that after the receipt of the aforesaid amount on 7th of October, 2008 a sum of Rs.32,97,600/- remained due to him. Admittedly, cheque of Rs.49,47,600/- was presented to the bank much after the receipt of the aforesaid sum of Rs.16,50,000/-, the cheque having been returned vide memo dated 22.12.2008. As is evident from the legal notice itself, the complainant required the petitioner to make payment of Rs.49,47,600/-, though the amount due to him on that date, as per his own showing, was only Rs.32,97,600/-. Thus, not only the complainant presented the cheque of Rs.49,47,600/- for encashment but he also made a demand for the said amount despite the fact that the amount payable to him even on the date of presentation of the cheque was only Rs.32,97,600/-.