This criminal misc. petition under Section 482 CrPC is filed by the petitioner being aggrieved with the order dated 27.02.2020 passed by Additional
Sessions Judge No.1, Abu Road, District Sirohi (hereinafter to be referred as 'the revisional court'), whereby the criminal revision petition filed by the
petitioner against the order dated 30.11.2019 passed by Additional Chief Judicial Magistrate, Mount Abu, District Sirohi (hereinafter to be referred as
'the trial court') in Cr. Case No.195/2017 has been dismissed. The trial court vide order dated 30.11.2019 rejected the application preferred on behalf
of the petitioner under Section 251 CrPC.
Brief facts of the case are that in the year 2016, respondent No.2 filed a Cr. Case No.162/2016 against the petitioner under Section 138 of Negotiable
Instruments Act, 1881 (hereafter to be referred as 'the N.I. Act') alleging that the petitioner took a loan of rupees twenty eight lacs from him and for
repayment of said amount, she gave him a cheque bearing No.431352, which, on presention in the concerned bank, was dishonoured by the bank. The
said case was ultimately withdrawn on the basis of compromise arrived at between the parties on 11.06.2016, wherein it was agreed that the petitioner
would repay a lump sum of rupees twenty eight lacs to the complainant- respondent No.2. Pursuant to the said compromise, the petitioner handed over
a cheque of twenty two lacs to the respondent No.2, however, the said cheque was also not honoured by the bank and the same was returned back to
the respondent No.2 with a remark 'insufficient fund'. Respondent No.2 again served a notice upon the petitioner but despite service of notice and
when amount was not paid, complaint under Section 138 of the N.I.Act has been filed against the petitioner, which is pending consideration before the
trial court.
The petitioner moved an application before the trial court under Section 251 CrPC while contending that the present complaint under Section 138 of
the N.I. Act is not maintainable as a similar complaint of this effect was already dismissed as withdrawn on 11.06.2016. The trial court rejected the
application preferred on behalf of the petitioner under Section 251 CrPC while observing that the earlier complaint filed in the year 2016 by the
complainant against the petitioner was for a different transaction and, therefore, the petitioner cannot be discharged while exercising powers under
Section 251 CrPC on the ground that the earlier complaint of the complainant regarding same transaction was dismissed as withdrawn.
The revisional court has affirmed the order passed by the trial court.
Assailing the validity of the orders passed by both the courts below, learned counsel for the petitioner has argued that both the courts below have
failed to take into consideration the fact that the second complaint in relation to the same transaction was not maintainable. Learned counsel has
submitted that once the complaint filed by the respondent No.2 was dismissed by the trial court, there was no occasion for him to file second complaint
for the same transaction.
In support of the above contention, learned counsel for the petitioner has placed reliance on a decision of Hon'ble Supreme Court rendered in Lalit
Kumar Sharma & Anr. vs. State of U.P. & Anr. reported in 2008(3) RLW 2278 (SC).
Heard learned counsel for the petitioner and perused the material available on record.
It is not in dispute that the complaint filed by the complainant in the year 2016 was withdrawn on the basis of compromise arrived at between the
parties, wherein the petitioner had agreed to pay a lump sum amount of rupees twenty two lacs to the complainant and in lieu thereof she gave a
cheque to the respondent No.2, which was not honoured and the bank returned the same with a remark 'insufficient fund'. Thereafter, the complainant
filed a fresh complaint before the trial court in respect of the cheque, which was given by the petitioner for compromise.
It is also to be noticed that pursuant to the compromise arrived at between the parties, the complainant withdrew his complaint on 11.06.2016. The
contention of the learned counsel for the petitioner that the present complaint filed by the respondent No.2 is in respect of same transaction is not
tenable because the transaction, for which the complaint was filed in the year 2016, was not similar to the transaction, which was complained of in the
fresh complaint.
The facts of the case decided by the Hon'ble Supreme Court, on which the petitioner has relied, are altogether different because in that case, pursuant
to the compromise arrived at between the parties, a cheque was given to the complainant, however, when the said cheque was not honoured, the
complaint was not withdrawn and the trial against the accused-persons went on and ultimately they were found guilty and were convicted and
punished by the trial court. In that event, the Hon'ble Supreme Court has observed that the complaint in respect of second cheque, which was issued
in terms of compromise did not create a new liability as the compromise did not fructify. The same is not the position in the present case.
Hence, I do not find any merit in this petition and the same is hereby dismissed.
