2022 (11) TMI 683 - HC - Indian Laws
Dishonor of Cheque - FIR against the misuse of blank cheques against the MD of the Finance Company - legally enforceable debt or not - specific role has been ascribed to the petitioner attaching vicarious liability on his part or not - proceeding under Section 138 and 141 of the Negotiable Instruments Act, 1881 - HELD THAT:- On going through the averments made in the petition under Section 156(3) of the Code it is found that the complainant along with her husband availed loan facilities in the name of partnership firm namely Shree Techno Services. However upon death of the husband of the complainant on 30.07.2019 the aforesaid firm and its current account in Axis Bank were closed. Admittedly, at the time of availing credit facilities the original deeds of property within mouza-Thiknikata, Matigara, District-Darjeeling as well as seven numbers of blank cheques were delivered to the HDB Financial Services Limited of which the petitioner is the Managing Director & Chief Executive Officer. The HDB Financial Services Limited on 03.09.2020 contending of non-payment of outstanding loan amount issued notice under Sections 13(2) read with Section 13(13) of the SARFAESI Act demanding a sum of Rs. 34,86,706/-. In reply dated 21.10.2020 to the aforesaid notice the complainant, in addition to other relevant facts, informed the death of one of the partners who was also one of the drawer of the cheque namely Indrajit Mukherjee, to HDB Financial Services Limited.
In the case at hand it is found that the complaint disclose a cognizable offence and therefore bearing in mind the aforesaid observation of the Hon’ble Court in order to unearth the veracity of the allegation made in the complaint thorough investigation is required and as such there cannot be any justification to stop the investigation at a nascent stage. Accordingly, the argument advanced on behalf of the petitioner falls short of merit.
Undisputedly seven numbers of blank cheques were handed over to the Finance company at the time of disbursement of loan. It is also found that the cheque in question was placed for encashment after the demise of one of the drawer of the cheque and an inflated value has been incorporated in the cheque which is at variance to the amount demanded by way of notice under the SARFAESI Act. In view of the distinctive facts involved in the present case, whether there was any act of forgery on the part of the petitioner being the Managing Director & Chief Executive Officer requires to be thoroughly investigated by the investigating agency. Although Section 139 of the Act provides a statutory presumption that on issuance of a cheque there is presumption that it is issued in discharge of existing debt or liability yet one cannot be oblivious to the peculiar facts noted above with regard to the cheque in question.
It is settled principle of law that at the stage of quashing FIR or complaint it is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein unless they are so absurd and inherently improbable that no prudent man can ever reach to just conclusion - It is placed on record that there is neither any absurd or inherent improbability noted in the facts of the present case nor the facts alleged in the complaint on its face value fails to disclose an offence. As it is already found that there are primary materials to proceed, hence invoking inherent power will lead to stifling of a legitimate litigation.