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2019 (4) TMI 113 - DSC - Indian LawsDishonor of Cheque - section 138 of NI Act - no debt or liability payable by the accused on the date of issuance of Cheque - section 14 of CEA - Held that:- Admittedly, in the present case, the complainant / respondent had instituted the prosecution u/s 138 of NI Act against the accused/ petitioner before the Ld. MM on the basis of the accused having tendered certain cheques to the Excise Officials when they had carried out a raid / search of his premises. It is when his statement u/s 14 of the Central Excise Act, 1944 was recorded, that the complainant alleges in the complaint that the accused had admitted his liability to pay the Central Excise Duty evaded by him on the pretext of his entitled to exemption under some notification. As such, reference to Section 14 of the Central Excise Act, 1944 becomes necessary. The record of the complaint before the Ld. MM was absolutely insufficient to form the opinion that the cheques were issued by the accused/ petitioner towards the discharge, in whole or in part, of the legally enforceable debt or liability. As per the record available before the Ld. MM, the show cause proceedings of the demand and recovery of the Central Excise duty alleged to have been evaded by the accused had been initiated and there was nothing in the complaint that any order in consequence thereof, of the determination of the evaded central excise duty had been passed by the proper officer / competent authority under the Central Excise Act. Instead, the accused petitioner had shown that the order was passed subsequently which was stayed by the Appellate Authority on the appeal preferred there against by the accused / petitioner - the impugned order dated 04.05.2018 vide which the petitioner had been summoned to face trial for the offence u/s 138 of NI Act suffers from a grave illegality and cannot be sustained. Revision allowed.
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