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Crl.A. @ S.L.P(Crl.)No.9288 of 2011

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     235      OF 2016 [Arising out of S.L.P.(Crl.)No.9288 of 2011]

M/s. Moser Baer Photo Voltaic Ltd.       …..Appellant   

Versus

M/s. Photon Energy Systems Ltd. & Ors.        …..Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Leave granted.

2. In course of its business of supplying solar cells and laminates, the  

appellant-company made supplies to the respondent no.1.  Respondent  

nos.2 to 6 are the Chief Executive Officer; General Manager (Finance);  

Ex-Chief  Executive  Officer;  Chairman;  and  the  Managing  Director  

respectively of respondent no.1.  According to appellant’s case, against  

larger outstanding dues, the respondent no.1 issued a cheque dated 31st  

May  2008  for  Rs.3,21,53,903/-  only.   On  a  request  that  there  was  

shortage of some funds the cheque was not to be presented immediately.  

There were some disputes between both the parties which were settled  

through a mutual meeting and as per minutes of meeting held on 22nd  

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and 23rd September 2008, the net payable amount by respondent no.1  

was reduced and settled at Rs.2,87,09,640/-.

3. The cheque was presented with the bankers – M/s. HDFC but it  

was returned on 28.11.2008 with the remark – “funds insufficient”.  On  

receipt of Memo of Dishonour at its Delhi office, appellant sent a legal  

notice dated 18.12.2008 demanding only the settled outstanding amount  

of  Rs.2,87,09,640/-  and  not  the  cheque  amount  which  was  

Rs.3,21,53,903/-.  On 19.12.2008, respondent no.1 paid an amount of  

Rs.20 lacs towards its debt liability and in reply to the notice it denied  

the balance liability.  It also adopted a further defence that the cheque  

was given for a larger amount by way of security and was not for any  

payable  debt.   The  criminal  complaint  filed  by  the  appellant  under  

Sections 138/141/142 of the Negotiable Instruments Act, 1881 in the  

Court  of  XI  Additional  Chief  Metropolitan  Magistrate,  City  Criminal  

Courts  at  Secunderabad  registered  as  C.C.  No.829  of  2009  was  

entertained and non-bailable warrant was ultimately issued against the  

accused persons on 04.03.2009.   The respondents  could not  succeed  

against  the  order  issuing  non-bailable  warrant  but  their  subsequent  

petition  under  Section  482  of  the  Code  of  Criminal  Procedure  was  

entertained  and  finally  allowed  by  the  impugned  order  under  appeal  

dated 12.10.2011.  As a result, the criminal complaint of the appellant  

has been dismissed mainly on the ground that the cheque amount was  

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different  from the  legally  enforceable  debt  as per  notice  given  by  the  

appellant to the accused persons.

4. An interesting question of law as to whether in view of payments or  

settlements  made  after  the  issuance  of  a  cheque,  a  complainant  can  

disclose the true state of affairs and issue a demand for a lesser amount  

and  whether  in  such  circumstances  the  criminal  prosecution  for  

dishonour of a cheque for higher amount is legally sustainable or not,  

did arise in this case.  However, on account of subsequent talks between  

the parties, an amicable settlement has been arrived at and hence there  

is no requirement now to answer the aforesaid question of law in the  

present proceedings and hence the same is left open for adjudication in  

any other appropriate case.

5. In the instant proceeding the parties have agreed that between the  

parties  the  total  outstanding  amount  shall  be  treated  as  

Rs.1,80,00,000/- (Rupees one crore eighty lac only) and the same shall  

be  paid  by  the  respondents  to  the  appellant  in  regular  monthly  

instalments of Rs.15,00,000/- (Rupees fifteen lac).  We accordingly direct  

that the respondents shall pay the first instalment of Rs.15 lac by first  

week of April  2016.  The remaining 11 instalments of Rs.15 lac each  

shall be paid regularly by the first week of each succeeding month.  On  

admission or proof of such payments in accordance with the aforesaid  

arrangement,  the  complaint  case  shall  stand  quashed  if  the  entire  

amount of Rs.1,80,00,000/- is paid by the respondents to the appellant  

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by the first  week of  March 2017.   Till  then the complaint  case  shall  

remain in abeyance.  It is made clear that if the entire payment is not  

made within the time indicated above then this order shall stand recalled  

and the complainant will be at liberty to move the concerned court for  

proceeding with the criminal case any time in April 2017 by virtue of the  

present order.  The appeal is disposed of in the aforesaid terms.

     .…………………………………….J.       [DIPAK MISRA]

      ……………………………………..J.                  [SHIVA KIRTI SINGH]

 New Delhi. March 18, 2016.

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