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HMT Watches Ltd. Versus MA. Abida & Anr.

2015 (5) TMI 280 - SUPREME COURT OF INDIA

Criminal complaint pertaining to offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - Dishonour of cheque due to stop payment instructions - Held that:- Accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after record .....

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.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. - In the case of Pulsive Technologies P. Ltd. vs. State of Gujarat [2014 (9) TMI 21 - SUPREME COURT] this Court has already .....

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riminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated. - Decided in favour of appellant. - CRIMINAL APPEAL NO. 471 OF 2015 - Dated:- 19-3-2015 - DIPAK MISRA AND PRAFULLA C. PANT, JJ. For The Appel .....

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1 of 2007 pending in the Court of Judicial First Class Magistrate (Court No. IV), Kochi; and C.C. Nos. 1208, 1209, 1210,1211 and 1212 of 2007, pending in the Court of Judicial First Class Magistrate (Court No. III), Kochi. All these criminal complaint cases were pertaining to offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"). 2. We have heard learned counsel for the parties and perused the papers on record. 3. Succi .....

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no.1 but she failed to make the payment of the amount mentioned in the cheques, i.e., total ₹ 1,79,86,357/-. Instead, she sent reply to the notice disputing liability to pay. On this, complainant filed twenty criminal complaints mentioned above, against the respondent no.1 with regard to the offence punishable under Section 138 of the N.I. Act. 4. The accused - M.A. Abida filed Criminal M.C. No. 2366 of 2008 and Criminal M.C. No. 2367 of 2008 challenging the proceedings initiated by the co .....

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nt of amount covered by the invoices. 5. The High Court accepted the plea of the accused (respondent no.1) and quashed the criminal complaint cases. Hence, these appeals through special leave. 6. On behalf of the appellant, it is argued before us that the High Court committed a grave error of law in quashing the proceedings of the criminal complaint cases on the factual pleas taken by the respondent no.1. On the other hand, learned counsel for the respondent no.1 contended that since the cheques .....

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charge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend t .....

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ng, to the drawer, of the cheque, "within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt .....

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le Instruments Act, 1881 prohibits what cannot be a defence in a prosecution in respect of offence punishable under Section 138 of the N.I. Act. It reads as under: "140. Defence which may not be allowed in any prosecution under section 138. - Defence which may not be allowed in any prosecution under section 138 It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on pr .....

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the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the .....

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e High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: - "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. xxx xxx xxx 22. Ordinarily, a defence of an accused alt .....

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or causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is .....

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he said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm." In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. 13. Lastly, it is .....

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