2020 (5) TMI 605 - HC - Indian Laws

Dishonor of Cheque - main thrust of argument is that since respondent No. 1 admittedly received a sum of Rs. 5 million US Dollars from one of the debtors of the respondent No. 2 company therefore after adjustment of this amount no debt is left and 5 complaints U/s 138 NI Act are liable to be quashed - HELD THAT - In the instant case though admittedly an amount of 5 million US Dollars have been received by respondent No. 1 from M/s Roseberry Global FZE Sharjah who according to the petitioner is one of the debtor(s) of respondent No. 2 company but there is nothing on record to suggest that there were any such directions from the side of respondent No. 2 company to apply the said amount so received against the cheques in question in respect of which the complaints are pending. Liability against the respondent No. 2 company is around 14 Hundred Crores and the cheque(s) amount are only part of the money payable by the respondent No. 2 company. Moreover in view of Section 60 of the Indian Contract Act in a case where the debtor has omitted to intimate and there are no other circumstances indicating to which debt the payment is to be applied it is the discretion of the creditor to adjust the payment against any lawful debt actually due and payable to him from the debtor - there is nothing on record to suggest that there were any specific directions by the respondent No. 2 company qua adjustment of this amount so received by respondent No. 1 against the cheque(s) amount in respect of which the complaints are pending. Petition dismissed.

Summary

Issues:
Petition for quashing criminal complaints under Section 138 of NI Act - Adjustment of received amount against outstanding debt - Application of payment where debt to be discharged is not indicated.

Analysis:
1. The petitioner sought to quash criminal complaints under Section 138 of the NI Act pending before a Metropolitan Magistrate. The respondent company, engaged in trade, had availed financial assistance from another party, leading to dishonored cheques and subsequent legal action against the company and its directors, including the petitioner.

2. A significant amount was released by the respondent company to the creditor, leading to the return of some cheques and withdrawal of complaints. The petitioner argued that a sum of 5 million US Dollars received by the creditor should be adjusted against the outstanding debt, rendering the complaints invalid due to no remaining debt.

3. The respondent argued that the creditor had the discretion to apply received amounts to any lawful debt, emphasizing that there were no specific directions from the respondent company to adjust the amount against the cheques in question. The respondent highlighted the legal provision under Section 60 of the Indian Contract Act, granting the creditor the right to apply payments at their discretion in the absence of specific instructions.

4. The court noted the absence of evidence indicating specific directions from the respondent company regarding the adjustment of the received amount against the cheque amounts in dispute. The court emphasized that the liability of the respondent company was substantial, and the discretion to adjust payments lay with the creditor in the absence of clear instructions.

5. Considering the previous litigation on the matter and the lack of merit in the present petition, the court dismissed the petition for quashing the complaints, as the adjustment of the received amount against the outstanding debt was at the discretion of the creditor, and no specific instructions were provided by the respondent company.

6. The court's decision was based on the legal principle that in the absence of clear instructions regarding the application of payments, the creditor has the discretion to adjust payments against any lawful debt due, as per Section 60 of the Indian Contract Act. The court found no grounds to quash the complaints under Section 138 of the NI Act, leading to the dismissal of the petition.