M/S MOSER BAER PHOTO VOLTAIC LTD. Vs. M/S PHOTON ENERGY SYSTEMS LTD.& ORS.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 235 of 2016, Judgment Date: Mar 18, 2016

                                                              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.

Leave granted.
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  and  23rd  September  2008,  the  net
payable  amount  by   respondent   no.1   was   reduced   and   settled   at
Rs.2,87,09,640/-.
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 different  from  the  legally  enforceable
debt as per notice given by the appellant to the accused persons.
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.
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 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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