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TMI Blog2012 (6) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A.T. Overseas Ltd. had given in all four cheques for different amounts to Anil Sachar, partner of M/s. Rati Woolen Mills who are appellant Nos. 1 and 2 respectively. According to the case of the complainants, the said cheques were given to M/s. Rati Woolen Mills, of which appellant No. 1 is a partner, in consideration of supply of goods to M/s. Shree Nath Spinners (P.) Ltd. 5. The aforestated cheques, which had been given by Munish Jain as Director of M/s. A.T. Overseas Ltd., had not been honoured and due to dishonour of the said cheques, the complainant, namely, Anil Sachar, as a partner of M/s. Rati Woolen Mills had issued notice as required under the provisions of section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). In spite of the said notice, the complainant was not paid the amount covered under the aforestated cheques and, therefore, complaints had been filed against the present respondents. 6. The case of the present respondents before the trial court as well as before the High Court was that the dispute was of a civil nature and with an oblique motive it was given a colour of criminal litigation. The said reply had been given especially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submitted that Munish Jain, who had signed the aforesaid cheques was Director in both the sister concerns viz. M/s. Shree Nath Spinners (P.) Ltd. and M/s. A.T. Overseas Ltd. Moreover, he submitted that once the cheques had been issued by the accused, as per provisions of section 139 of the Act, burden was on the accused to show that there was no consideration. So as to substantiate his aforestated submission, the learned counsel relied upon the Judgments delivered by this Court in ICDS Ltd. v. Beena Shabeer [2002] 6 SCC 426/ 39 SCL 305 (SC), K.K. Ahuja v. V.K. Vora [2009] 10 SCC 48/ 94 SCL 140 (SC) and K.N. Beena v. Muniyappan [2001] 8 SCC 458/[2002] 37 SCL 583 (SC). 11. For the aforestated reasons, the learned counsel strenuously submitted that the High Court had erred in confirming the orders of acquittal because upon lifting the corporate veil, the correct position could have been revealed and the correct position according to the learned counsel was that the cheques had been given by a sister concern, namely, M/s. A.T. Overseas Ltd. in consideration of the goods supplied to M/s Shree Nath Spinners (P.) Ltd. The learned counsel also drew our attention to the fact that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. was to make the payment. The aforestated understanding was on account of the fact that directors in both the aforestated companies were common and the aforestated companies were sister concerns. In the circumstances, it can be very well said and it has been proved that in consideration of supply of goods to M/s. Shree Nath Spinners (P.) Ltd., M/s. A.T. Overseas Ltd. had made the payment. In view of the above fact, in our opinion, the trial court was not right when it came to the conclusion that there was no reason for M/s. A.T. Overseas Ltd. to give the cheques to the complainants. The aforestated facts are very well reflected in the statement made in the complaint and in the evidence by the complainant which have not been controverted. Paras 2 and 3 of the complaint are reproduced herein below: "(2) That the accused had business dealings with the complainant and supply of the goods which duly supplied by my client vide separate bills from time to time which was duly acknowledged by the accused No. 5 Varun Jain director of the accused No. 1. (3) That in order to discharge the liability of making the payment, the accused issued following two cheques in favour of the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived at among the complainants and the accused, one can safely come to a conclusion that the cheques signed by Munish Jain had been given by M/s. A.T. Overseas Ltd. to the complainants in discharge of a debt or a liability, which had been incurred by M/s. Shree Nath Spinners (P.) Ltd. 18. We may also refer to the judgment delivered by this Court in the case of ICDS Ltd. ( supra). In the said judgment this Court has referred to the nature of liability which is incurred by the one who is a drawer of the cheque. If the cheque is given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the cheque can be made liable under section 138 of the Act. The relevant observation made in the aforestated judgment is as under: "The words "any cheque" and "other liability" occurring in section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. These expressions leave no manner of doubt that for whatever reason it may be, the liability under section 138 cannot be avoided in the event the cheque stands returned by the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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