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2008 (8) TMI 951 - HC - Indian LawsDishonour of cheque - Undated cheque was given as a security - cheque was given for consideration or not - Issued summon order for Cognizance of offence u/s 138, 139 and 141 - Application u/s 482 for quashing the summon order - HELD THAT:- It is noteworthy that, notice of demand sent by the complainant in terms of Section 138 did not elicit any response. Furthermore, even before this Court, counsel for the petitioners has not explained why his clients failed to make any specific demand in writing for return of the cheque since, according to them, its purpose had already been served, and the contract for which the cheque was issued, was over. In N. Rangachari Vs. Bharat Sanchar Nigam Ltd.[2007 (4) TMI 621 - SUPREME COURT], it was held that if, on reading the complaint as a whole, all the elements of the offence u/s 138 and 141 are made out, then any pleas put forward by the appellant and the defences sought to be put forward by the accused, can only be looked into after the trial is concluded. Admittedly the cheque was given for consideration. The respondent has tried to encash that cheque against consideration which, according to the respondent, was due to it. In addition, Section 139 also creates a presumption in favour of the complainant. Under the circumstances, the onus for proving otherwise lies on the petitioners and can only be discharged at the trial. Furthermore, as held in Modi Cements Ltd. Vs. Kuchil Kumar Nandi, [1998 (3) TMI 632 - SUPREME COURT], once a cheque is issued by the drawer, a presumption u/s 139 must follow, and merely because the cheque in question was undated at the time it was handed over does not mean that it was given without consideration. There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over. There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over. On the contrary, as per the ratio of Anil Kumar Sawhney Vs. Gulshan Rai [1993 (10) TMI 347 - SUPREME COURT], the cheque is deemed to be drawn on the date mentioned on the cheque. Lastly, the notice u/s 138 issued by the respondent, was admittedly received by the petitioners but they did not bother to reply. Looking to the totality of the circumstances, it cannot be said that no prima facie case is made out or that interference with the proceedings before the Ld. Metropolitan Magistrate is warranted in the exercise of this Court’s jurisdiction u/s 482 Cr.P.C. The petition is, therefore, dismissed.
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