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2022 (11) TMI 555 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - existence of legally enforceable debt or not - Whether a single complaint in respect of a cheque issued on behalf of the first accused company and two other cheques relating to the personal bank account of the 2nd accused is maintainable? HELD THAT:- Section 143 of N.I.Act contemplates summary trial of the cases, and according to section 262 of Cr.P.C., the procedure prescribed for trial of summons cases is to be followed. Charge is not framed in the trial of summons cases or summary trials, only substance of accusation is stated to the accused. But, for the purpose of analysis, reference may be made to sections 219, 220(1) and 223(a) Cr.P.C. Section 219(1) provides for charging and trial of a person who is accused of committing more offences of the same kind within a space of twelve months, but a single trial for more than three offences is not permitted - If this analysis is applied to the factual situation in the instant case, the transaction in connection with which cheques were issued can be said to be the same. The transaction pertains to loan liability of the first accused-company. Therefore what is deducible is, second accused who stands in dual capacity can be tried together for the dishonour of the cheque of the company and two cheques of his personal bank account. A single demand notice was enough and a single complaint is maintainable. Existence of legally enforceable debt or not - HELD THAT:- There is no effective cross-examination of PW.1 on Ex.P.22. One suggestion found is that the complainant has misused Ex.P.22. That means accused No. 2 does not dispute execution of Ex.P.22 and according to him it was misused. Therefore if on 5.2.2009, Ex.P.22 came into existence nullifying the MoU and other agreements, Ex.D7,D.8 and D.9 can hardly have any effect. If this is the picture obtainable from documentary evidence, the findings of the Magistrate cannot be sustained. A clear conclusion can be drawn that the cheques were issued for discharging part of the liability of the company - It is admitted that the cheques were dishonoured for insufficiency of funds in the bank accounts. Demand notice was issued within the prescribed time. Demand was not fulfilled and thereby penal consequences under Section 138 of N.I. Act ensued. For these reasons, the findings of the Magistrate cannot be sustained. The acquittal judgment requires to be set aside. In regard to dishonour of cheque as per Ex.P.1, the first accused is to be convicted and in terms of section 141 of N.I.Act, accused No. 2 who is its Managing Director is to be sentenced. And in regard to cheques as per Ex.P.2 and Ex.P.3, accused is to be held guilty and sentenced for the offence under section 138 of N.I.Act - Appeal allowed.
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