Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (11) TMI 558 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or liability or not - rebuttal of presumption - section 138 and 139 of NI Act - HELD THAT:- It is not in dispute that pursuant to the agreement dated 9.11.2017 (Annexure P-4) executed between partners of Firm M/s. Blue Diamond Associates including both the parties, subject cheque was issued by the petitioner in favour of respondent/complainant against transfer of their share in his favour, which was said to be dishonoured by the Bank and despite service of legal notice, amount of cheque was not paid by the petitioner, thus, all the necessary ingredients under Section 138 of the NI Act are attracted against the petitioner in the instant case. This court is not impressed at all with the submissions made hereinabove by learned counsel for the petitioner, as there was specific condition in the agreement dated 19.11.2017 that remaining amount i.e. Rs.2,62,00,000/- has to be paid by petitioner (party No. 2) to respondent (party No. 1) necessarily along with interest till 31.12.2019. It is also specifically mentioned in the agreement that if the amount was not paid within the stipulated period i.e. till 31.12.2019, then respondent/complainant (party No. 1) would have all the right to encash the cheques and it is also a matter of fact that since aforesaid amount i.e. Rs.2,62,00,000/- alongwith interest was not paid by petitioner (party No. 2) within the stipulated period and, thereafter, the cheque was deposited for encashment, which was dishonoured by the Bank, therefore, it cannot be said that since the cheque was given as security cheque, hence, offence under Section 138 of the NI Act is not attracted against the petitioner. In the case of Ripudaman Singh v. Balkrishna [2019 (3) TMI 1895 - SUPREME COURT], their Lordships of the Supreme Court have held that though agreement to sell does not create interest in immovable property, however it constitutes enforceable contract between parties, therefore, cheques issued under and in pursuance to agreement to sell is payment made in pursuance of legally enforceable debt or liability. In the instant case, objection/grounds raised by petitioner, registering the complaint case under Section 138 of the NI Act against him are grounds of his defence, which are required to be proved by him before the learned trial Court by adducing evidence. If those grounds are allowed to be entertained at this interlocutory stage, then it will amount to grant the petitioner/accused unmerited advantage. The petition under Section 482 of the Cr.P.C., being devoid of substance, is liable to be and is hereby dismissed.
|