JUDGMENT
S.S. Nijjar, J.
1. Heard learned counsel for the parties at length.
2. The petitioners had taken on rent premises belonging to the respondent. A sum of Rs. 3 lacs was deposited with the respondent as interest-free security and six cheques in the sum of Rs. 50,000/-each were issued in favour of the respondent in lieu of making alterations to the demised premises. The first five cheques issued by the petitioners were honoured. The sixth cheque was dis-honoured. It was dishonoured, according to the petitioners, as the respondent failed to fulfil his obligation to complete the alterations to the demised premises. In view of the dishonour of the cheque, the respondent filed a criminal complaint, Annexure P-l, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “tha Act”). This complaint is pending in the Court of learned Chief Judicial Magistrate, Gurgaon. By order dated 22.7.1998, the petitioners were summoned to appear in Court. The petitioners made an application for recall of the summoning order which was dismissed on 10.3.1999. In this order, the trial court has
observed that the cheque had been dishonoured due to insufficient funds. Thus, prima facie, the stand of the petitioners was found to be untrue. The petitioners had also alleged that civil litigation was pending between the parties and, therefore, the complaint was an abuse of the process of the Court. This submission was also rejected by the trial court. Against the aforesaid order of the trial Court, the petitioners filed Criminal Revision No. 13 of 26.3.1999 in the Court of learned Additional Sessions Judge, Gurgaon. After hearing the learned counsel for the parties at length, the revision petition was dismissed vide order dated 5.10.1999. This order of the learned Additional Sessions Judge, Gurgaon, was not challenged by the petitioners. Thus, the order has, in fact, become final. At the same time, undoubtedly, civil litigation was continuing between the petitioners and the respondent. The respondent had filed a civil suit for ejectment and recovery of arrears of rent which was decreed in favour of the respondent on 31.3.2000. No appeal has been filed against the said decree. The respondents, thereafter, have taken out execution proceedings. By order dated 23.12.2000, the executing Court has directed the attachment of certain amounts lying in fixed deposits in favour of the petitioners.
3. Mr. I.D. Singla, learned counsel forthe petitioners has submitted that the petitioners are prepared to pay the entire amount due together with interest under the dishonoured cheque. In fact, amount together with interest has been brought by the petitioners to , Court in cash. It was ihis submission of the petitioners which had persuaded this Court to issue notice of motion of 6.12.2000 by passing the following order:-
“Notice of motion to the respondent for January 24, 2001.
An offer is made on behalf of the petitioner that he is prepared to pay Rs. 50,000/- along with interest to the complainant-respondent. The petitioner is, therefore, directed to bring with him the amount on the next date.
Meanwhile, passing of the final order is stayed till then. Rest of the proceedings may continue.
Copy of the order be given dasti under the signatures of Court Secretary.
December 06, 2000.
(Bakhshish Kaur)
Judge”
4. Mr. Singla has also submitted that since the respondent has already obtained a decree from civil Court which includes the amount of the dishonoured cheque, the present proceedings are abuse of the process of the Court. Thus, the proceedings deserve to be quashed. In support of his submission, learned counsel has relied on a judgment of the Calcutta High Court in the case of M/s. Ancon Engineering Co. (P) Ltd. and another v. Sri Amitava Goswami, 1993(2) RCR (CrI.) 660 (Col.): 1994 CrLL.J. 351. Even otherwise, it is submitted by Mr. Singla that this Court has ample powers to quash the proceedings in order to secure the ends of justice.
5. On the other hand, Mr. Jaskirat Singh Sidhu, appearing forthe respondent, has submitted that these pleas are no longer open to the petitioners in view of the law laid down by the Hon’ble Supreme Court in the case of Rajneesh Agganval v. Amit J. Bkalla, 2000(1) RCR (CrI.) 60S (SC): 2000(1) Supreme Court on Line Case No. 004 decided on 4.1.2001. Learned counsel has also submitted that there is no factual basis pleaded in the petition to the effect that the civil court decree includes a sum of Rs. 50,000/-which is represented by the dishonoured cheque. Therefore, this plea is not open to the petitioners without the necessary pleading. Learned counsel has further submitted that the criminal proceedings have to be continued to its logical end. The desirability of the petitioners to pay the amount represented by dishonoured cheque would have no effect on the pendency of the trial, although in the matter of awarding of sentence, it may have some effect while considering the question of sentence in case the petitioners are ultimately convicted.
6. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties.
7. A perusal of the complaint clearly shows that, prima facie, the case against the petitioners under Section 138 of the Act, is established. They have been summoned in accordance with law. The application for recall of the summoning order has been rejected by the trial Court. Criminal Revision filed against this order has been dismissed on 26.3.1999. This order having not been challenged, is final between the parties. There is no dispute with the proposition Of law laid down in the case of M/s. Ancon Engineering’s case (supra). A perusal of the relevant part of the judgment would show that the ratio is of no assistance to the case put forward by the petitioners. In fact, the Calcutta High Court has held that where a person commits theft or criminal mis-appropriation the subsequent restoration of the subject matter of the theft or criminal mis-appropriation will not undo the offence which has already been committed although in fit and proper circumstances the High Court in view of the particular facts and circumstances of the case may in exercise of its inherent power under Section 482 Cr.P.C. quash the proceedings or pass such other order as may deem fit and proper in view of the subsequent development or the parties may even compromise or compound the offence where it is so permissible or the trial court in awarding punishment may take into consideration the subsequent development in mitigation of the severity of punishment. In para 8 it is held as follows:-
“It is immaterial whether the pay-order which was issued towards part-payment but not to cover the entire amount was encashed by the complainant after filing the complaint. Once the offence is complete any subsequent conduct either of the complainant or of the accused will not wash away the offence although in certain cases it may be permissible to compromise or compound the matter between the parties. The fact that any part-payment has been made by the drawer of the cheque in the present case is of no consequence in deciding the question of maintainability of the prosecution irrespective of the question whether the same may or may not be a factor for consideration in awarding the punishment, if the drawer of the cheque is convicted under Section 138. The power to impose fine under Section 138 is quite a flexible one and the Court on conviction of the drawer of the cheque may impose any amount of fine not exceeding twice the amount of the cheque or even may not impose any fine at all on passing a sentence of imprisonment alone.
8. In view of the above, it cannot be held the proceedings in the complaint are liable to be quashed merely because the petitioners have offered to pay the amount represented by the dishonoured cheque. Proceedings under section 138 of the Act are quite distinct from any proceedings which may be taken by the parties for enforcement of the civil liability. The imposition of punishment on account of dishonour of the cheque will not have any effect on the proceedings in civil court. E’.ven the amount which may be imposed as fine, would not be adjustable against a decree that may be ultimately passed in the civil Court. Therefore, I do not find any substance in the submission made by the learned counsel for the petitioners to the effect that merely because the civil suit has been decreed in favour of the respondent, the present proceeding in the complaint would necessarily become an abuse of the process of Court. This very question has been considered by the Supreme Court in the case Rajneesh Aggarwal’s case (supra). In that case, the Supreme Court posed the following question:-
” Whether deposit of the entire amount covered by three cheques, while the matter is pending in this Court, would make any difference ?”
9. This question has been answered in tha following terms:-
“So far as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this viiew of the matter, the so-called deposit of money by the respondent in this Court is of no consequence.
In the aforesaid premises, we set aside the impugned orders of the High Court and allow these appeals and direct that the criminal proceedings would be continued. The money which had been deposited by the accused in this Court, may be refunded to the accused through his counsel. The Magistrate is directed to dispose of the proceedings at an early date.”
10. Keeping the aforesaid ratio in view, it has to be held that the present petition has to be dismissed and the proceedings in the criminal Court have to continue to its logical end.
11. In view of the above, present petition is dismissed. No costs.
12. Petition dismissed.